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Full text of "International law studies,the law of war and neutrality at sea"

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NAVAL WAR COLLEGE 
NEWPORT, RHODE ISLAND 



INTERNATIONAL LAW 
STUDIES 

THE LAW OF WAR 
AND NEUTRALITY AT SEA 

by 
Robert W. Tucker 

The Johns Hopkins University 
Consultant, Naval War College 



1955 

NAVPERS 15031 

Volume XLX 



UNITED STATES 

GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1957 



For sale by the Superintendent of Documents, U. S. Government Printing Office 
Washington 2 5. D. C. - Price $2.25 



FOREWORD 

Any inquiry into the present status of the law of war and neutrality at 
sea is confronted with the difficult task of seeking to evaluate the cumula- 
tive effect of two World Wars upon the so-called "traditional law." It 
has become abundantly clear that it is no longer possible to look upon the 
events that followed the outbreak of hostilities in 1914 and in 1939 as 
little more than one long manifestation of "lawlessness" on the part of 
belligerents (and, during World War II, of neutrals as well). Yet it would 
appear only slightly less misplaced to accept indiscriminately these same 
events as "law creating" in character. But where to draw the line in 
each concrete instance between belligerent behavior that has succeeded in 
replacing the traditional law and behavior that remains unlawful is a 
problem that frequently seems almost insoluble. It may well be asserted 
that the continued validity of law is dependent upon at least a minimum 
degree of effectiveness, and that this relationship between validity and 
effectiveness is particularly compelling with respect to the rules regulating 
the conduct of war. However, as will be seen, there is a deceptive sim- 
plicity about the test of effectiveness when stated in general terms that 
becomes fully apparent only when applied to concrete cases. Whatever 
its intrinsic utility, this test must encounter serious obstacles in the course 
of its application. 

Nor can these obstacles be readily surmounted by an analysis which 
intends to lay bare the developments that have led belligerents in this 
century apparently to abandon so many of the restraints they had formerly 
accepted. It is one thing to inquire into the causes of state behavior and 
quite another thing to determine whether or not this behavior has actually 
resulted in invalidating a given rule — or rules. There is the further con- 
sideration that even as an instrument for prediction an inquiry into the 
determinants of belligerent behavior is not without grave pitfalls. No 
satisfactory method has been devised that would enable the observer to 
distinguish accurately between developments of a merely transient nature 
and developments that may rightly be regarded as irreversible. Of course, 
developments in technology may be considered as irreversible. However, 
the recurrence of total war in the twentieth century is not primarily the 
result of technological advance — though this advance has contributed 
greatly to the ease by which total war may be waged — but rather of social 
and political developments. The latter are the product of human interests 
and as such are rarely — if indeed ever — irreversible. It is for this reason 

in 



that the possibility cannot be excluded that men might once again find it 
in their common interests to return to a form of limited warfare, to wars 
that are limited not only in the number of participants and in the purposes 
for which they are fought but also in the weapons and methods that are 
employed against an opponent. Admittedly, this possibility depends 
upon a certain optimism that men may learn something from past experience, 
and over this one cannot be at all certain. 

It should be made quite clear, therefore, that as matters presently stand 
no writer can hope to speak on the law of naval warfare with the assur- 
ance and precision that readers might expect. Although this fact cannot 
fail to be a source of dissatisfaction, it ought not to serve as a deterrent 
against emphasizing those areas of the traditional law in which a sub- 
stantial measure of uncertainty prevails. In the present study the attempt 
has been made to provide such emphasis. While the traditional law 
generally has been maintained as the starting point for further discussion, 
the attention of the reader is directed principally to the recent period and 
to the numerous problems which this period has raised. 1 

The broad survey that is undertaken in the following pages of this volume 
lays no claim to completeness even in what it does attempt to do. It is 
particularly limited in two respects, however, and these limitations perhaps 
require some explanatory remarks. 

In the first instance, no effort has been directed towards providing a 
detailed analysis of recent prize decisions, although the rules determining 
both the substantive grounds for capture and the procedure of visit, search , 
and capture have been adequately reviewed. In defense of this omission 
it may be pointed out that the second World War added very little in the 
way of substantive developments to the law of prize. Almost all of the 
important — and still disputed — developments in prize law that have oc- 
curred since the nineteenth century resulted from the events of World War 
I, and they have received thorough treatment in a number of competent 
monographs. The prize cases resulting from World War II were con- 
cerned — for the most part — either with refining further the substantive 
grounds for capture or with developing rules of a largely procedural 
character. They are, therefore, quite technical in character and their 
exposition in a general survey of the conduct of maritime war would have 
little, if any, place. It is also worthy of note that World W T ar II witnessed 
a clearly discernible shift away from the former emphasis upon prize court 
adjudication toward more flexible and less time-consuming methods of 

1 In this connection it may be noted that the contemporary challenge to the traditional 
system is not solely the result of persistent belligerent — and neutral — departures from rules 
once quite effective. In part this challenge is also a consequence of the change that has oc- 
curred in the legal position of war itself, particularly as a result of the Charter of the United 
Nations. For this reason it has appeared desirable to treat at some length the problem of the 
effects that the change in the legal position of war may have upon the operation of the law 
regulating war's conduct. 

IV 



disposing of vessels and cargoes seized as prize. The results frequently 
have been to the mutual advantage of belligerent and neutral. Finally, 
mention must be made of the fact that the courts of the United States have 
made no contribution in this century to the law of prize. 

The second limitation relates to the material to be found in the notes. 
No attempt has been made to give extensive bibliographical references in 
support of, or relating to, points discussed in the test. Instead, the refer- 
ences given are selective and have been chosen either for illustrative pur- 
poses or because they are considered to represent a point of view thought 
to bear some significance. Wherever possible, care has been exercised to 
choose the more recent materials (whether documents, general treatises or 
articles), though here again the careful reader may observe some omissions. 
It is always tempting for a writer to believe that there is a definite logic 
to, and a readily apparent consistency in, the materials he has chosen to 
cite. Unfortunately, this is only rarely the case, and what is readily 
apparent to the writer is seldom altogether obvious even to the sympa- 
thetic reader. What may be said of the notes in the present study is 
that while a good deal of license has been taken with them they have been 
designed to be of immediate use and interest to the reader. 

There is one "source material" frequently referred to in the notes that 
deserves special mention. In the appendix to this volume the official 
United States Navy manual entitled Law of Naval Warfare has been repro- 
duced. Issued in 1955 by the Chief of Naval Operations, this manual is 
prepared for the information and guidance of the naval service. In the 
preparation of this latest manual the Naval War College once again per- 
formed a task it has undertaken on several occasions over the past half 
century. 

It is a pleasant duty to acknowledge the assistance I received in the 
preparation of this volume. Professor Josef L. Kunz and Professor Julius 
Stone were kind enough to read the manuscript and to offer helpful sug- 
gestions and needed criticism. Appreciation must also be expressed to 
Miss Barbara Johnson, Mr. Michael Jaworskj and Mr. Arnold Simkin for 
their willing performance of various essential tasks. 

I am particularly indebted to Rear Admiral Thomas H. Robbins, Jr., 
President of the Naval War College, whose wise and understanding assist- 
ance has been of the greatest value. 



PREFACE 

The publication of this series was inaugurated by the Naval War College 
in 1894. This is the fiftieth volume in the series as numbered for index 
purposes. Ihe titles have varied slightly from year to year. The pre- 
ceding volume is entitled "International Law Studies, 19 j 4, Collective 
Security under International Law," by Professor Hans Kelsen. 

The Naval War College has maintained a continuing interest in the law 
of war and neutrality at sea. The present volume, prepared by Professor 
Robert W. Tucker, is the first complete study of the subject undertaken 
by the Naval War College since the Second World War. 

The opinions expressed in this volume are not necessarily those of the 
U. S. Navy or the Naval War College. 



Thomas H. Robbins, Jr. 
Rear Admiral, United States Navy, 

President, Naval War College. 
Newport, i December 1956. 



Vll 



TABLE OF CONTENTS 



Page 

FORWARD iii 

PREFACE vii 

PART ONE 

I. WAR AND THE LAW OF WAR 3 

A. The Legal Position of War and the Operation of the Law of War: General 

Considerations 3 

B. The Operation of the Law of War During World War II 11 

C. Collective Security and the Operation of the Law of War: The United Na- 

tions 13 

D. Conclusions 21 

II. THE SOURCES AND BINDING FORCE OF THE LAW OF NAVAL WARFARE . . 26 

A. The Sources of the Law of Naval Warfare 26 

B. The Binding Force of the Law of Naval Warfare 32 

III. THE NAVAL FORCES OF BELLIGERENTS 38 

A. The Naval Forces of Belligerents According to the Traditional Law. ... 38 

B. The Problem Today 41 

C. Aerial Forces in Warfare at Sea 43 

IV. RULES GOVERNING WEAPONS AND METHODS OF NAVAL WARFARE. . 45 

A. The General Principles of the Law of War 45 

B. Weapons in Naval Warfare 50 

C. The Attack and Destruction of Enemy Vessels 55 

i. The Traditional Rules Governing the Liability of Enemy Vessels to Attack. . . 56 

z. The Experience of World Wars I and II 57 

3. The Present Situation 67 

4. Obligations of Belligerents When Attacking Enemy Vessels 70 

D. The Seizure of Enemy Vessels and Goods 74 

1. Enemy Character 76 

a. Vessels 76 

(i) Transfer of Flag 78 

b. Goods (Cargoes) 81 

(i) Transfer of Goods at Sea 85 

z. Enemy Property Exempt from Seizure 86 

a. Enemy Vessels at the Outbreak of War 86 

b. Postal Correspondence 90 

c Coastal Fishing Boats and Small Boats Engaged in Local Coastal Trade .... 95 

d. Vessels Engaged in Missions of a Religious, Scientific or Philanthropic Char- 

acter 96 

e. Hospital Ships, Medical Transports and Medical Aircraft 97 

f . Cartel Ships 97 

g. Enemy Goods Under a Neutral Flag 99 

3. The Conduct of Seizure 102 

a. Destruction of Enemy Prizes 104 

ix 



IV. RULES GOVERNING WEAPONS AND METHODS OF NAVAL WARFARE— 

Continued Page 

E. The Seizure and Destruction of Enemy Aircraft 108 

F. The Treatment of Enemy Subjects Ill 

i . Prisoners of War , Ill 

i. Wounded, Sick and Shipwrecked 117 

a. The Wounded, Sick and Shipwrecked 118 

b. Hospital Ships 123 

c. Religious, Medical and Hospital Personnel 129 

d. Medical Transports 129 

e. The Distinctive Emblem: The Problem of Identification 131 

f. Application and Enforcement 134 

G. Ruses in Naval Warfare 138 

H. Bombardment 143 

V. ENFORCEMENT OF THE LAW OF NAVAL WARFARE 150 

A. Reprisals 151 

B. Punishment of War Criminals 153 

PART TWO 

VI. NEUTRALITY AND THE LEGAL POSITION OF WAR 165 

A. The Traditional Relationship Between War and Neutrality 165 

B. Neutrality and the General Treaty for the Renunciation of War 166 

C. Neutrality under the Charter of the United Nations 171 

VII. NEUTRALITY AND THE TWO WORLD WARS 181 

A. Belligerent Encroachment Upon Traditional Neutral Rights 181 

B. The Abandonment of Traditional Neutrality by Non-Participants: The 

Emergence of "Non-Belligerency" 191 

C. Conclusions 193 

VIII. RELATIONS BETWEEN NEUTRAL AND BELLIGERENT STATES IN NAVAL 

WARFARE 196 

A. The Concept of Neutrality 196 

B. The Commencement and Termination of Neutrality 199 

C. The Neutral's Duty of Impartiality 202 

D. The Neutral's Duty to Abstain from Supplying Belligerents with Goods and 

Services 206 

E. Restrictions on the Use of Neutral Ports and Territorial Waters: Neutral 

Duties of Prevention 218 

i. Belligerent Acts of Hostility in Neutral Waters 219 

z. Neutral Ports and Waters as a Base of Operations 226 

a. The Passage of Belligerent Warships and Prizes Through Neutral Territorial 

Waters 231 

b. Belligerent Stay in Neutral Ports and Waters . . . . 240 

(i) Warships 240 

(ii) Prizes 245 

(iii) Armed Belligerent Merchant Vessels 247 

3. Restrictions on the Use of Neutral Air Space 251 

F* Belligerent Interference With Private Neutral Trade: Neutral Duties 

of Acquiescence 252 



VIII. RELATIONS BETWEEN NEUTRAL AND BELLIGERENT STATES IN 

NAVAL WARFARE— Continued Page 

G. Violations of Neutrality 258 

i. Violations of Neutrality as Distinguished from Termination of Neutral Status. . 258 
z. Rights and Duties of Neutral States in the Event of Belligerent Violation of 

Neutral Rights 259 

3. Belligerent Rights in the Event of Neutral Failure to Fulfill Obligations of 

Neutrality 261 

IX. CONTRABAND 263 

A. Conception of Contraband 263 

B. Carriage of Contraband: The Problem of Destination 267 

C. Consequences of Carriage of Contraband 276 

D. Conclusions 278 

X. BLOCKADE 283 

A. Concept of Blockade 283 

B. The Customary Rules Governing Blockade 287 

1. Establishment and notification . . . . r 287 

z. Effectiveness 288 

3. Area of Blockade 289 

4. Application of Blockade 291 

5 . Termination of Blockade 292 

6. Breach of Blockade 292 

7. Penalty for Breach of Blockade 295 

C. Belligerent "Blockade" Measures in the Two World Wars 296 

1. Claims to Restrict Neutral Navigation Through the Establishment of Special 

Zones 296 

z. The Allied "Blockades" of Germany 305 

D. Conclusions 315 

XL UNNEUTRAL SERVICE 318 

A. Acts of Unneutral Service Resulting in Liability to the Same Treatment as 

Enemy Warships 319 

B. Acts of Unneutral Service Resulting in Liability to the Same Treatment as 

Enemy Merchant Vessels 322 

C. Acts of Unneutral Service Resulting in Liability to Seizure 324 

1. Carriage of Enemy Persons 325 

z. Carriage of Dispatches 330 

XII. VISIT, SEARCH, SEIZURE AND DESTRUCTION OF NEUTRAL VESSELS 

AND AIRCRAFT 332 

A. Visit and Search of Neutral Vessels 332 

1. The Traditional Procedure for Conducting Visit and Search 336 

z. Visit and Search Today: The Consequences of Diversion 338 

B. Seizure and Destruction of Neutral Vessels 344 

C. Visit, Search, Seizure and Destruction of Neutral Aircraft 354 

APPENDIX: LAW OF NAVAL WARFARE 
Chapter 

1. INTRODUCTION 359 

100. Scope and Method of Presentation of Law of Naval Warfare 359 

no. Status and Applicability of Law of Naval Warfare 359 



XI 



Cha P tef Page 

z. THE GENERAL PRINCIPLES OF THE LAWS OF WAR 363 

zoo. War and Law 363 

zio. The Sources of the Laws Regulating Warfare 363 

zn. Customary Law 363 

ziz. Treaties 363 

Z13. Binding Force of Rules Regulating Warfare 364 

zzo. The Basic Principles of the Laws of War 364 

zzi. The Distinction Between Combatants and Noncombatants 364 

Z30. Neutrality 365 

Z31. The Determination of Neutral Status of States 365 

Z3Z. Neutrality Under the Charter of the United Nations 365 

Z33. Neutrality Under Regional and Collective Self-Defense Arrangements. . . 366 

Z40. The Laws of Land Warfare , 366 

Z50. The Laws of Air Warfare 366 

3. ENFORCEMENT OF THE LAWS OF WAR 372 

300. Means of Enforcement of the Laws of War 372 

310. Reprisals 372 

3x0. War Crimes Under International Law 373 

330. Punishment of War Crimes Under International Law 374 

4. AREAS OF OPERATIONS 380 

400. Scope 380 

410. The Legal Divisions of the Sea 380 

411. Inland Waters 380 

41Z. Territorial Sea (Waters) 380 

413. High (Open) Seas 381 

4x0. The Legal Divisions of The Air Space 382 

4Z1. Legal Control over the Air Space 382 

4zz. Special Situations 382 

430. The Areas of Naval Warfare 382 

440. Restrictions upon Belligerents in Neutral Jurisdiction 383 

441. Acts of Hostility 383 

44Z. Base of Operations 383 

443. Neutral Territorial Sea and Ports 383 

444. Neutral Air Space 384 

5. VESSELS, AIRCRAFT, AND PERSONNEL AT SEA 394 

500. Vessels and Aircraft 394 

501. Enemy Character 394 

50Z. Visit and Search 395 

503. Capture and Destruction 397 

510. Personnel 399 

511. Enemy Warships and Military Aircraft 399 

51Z. Enemy Merchant Vessels and Aircraft 399 

513. Neutral Merchant Vessels and Aircraft 399 

5Z0. Communications 400 

6. LEGAL RESTRICTIONS UPON WEAPONS AND METHODS EMPLOYED IN 

NAVAL WARFARE : 409 

600. Scope 409 

610. Weapons 409 

611. Mines and Torpedoes 409 

6iz. Chemicals, Gases, and Bacteria 410 

613. Nuclear Weapons 410 



xii 



Chapter 

6. LEGAL RESTRICTIONS UPON WEAPONS AND METHODS EMPLOYED 

IN NAVAL WARFARE— Continued Page 

62.0. Bombardment 410 

62.1. General Limitations on Bombardment 410 

62.7.. Specific Limitations on Bombardment 410 

6x3. Warning before Bombardment 411 

630. Measures of Maritime Warfare Against Trade 411 

631. Contraband 411 

63Z. Blockade 412 

633. Enemy Property 414 

640. Stratagems and Treachery 414 

641. Improper Use of Distinctive Emblems 414 

INDEX 423 



xm 



PART ONE 



I. WAR AND THE LAW OF WAR 

A. THE LEGAL POSITION OF WAR AND THE OPERATION OF 

THE LAW OF WAR: GENERAL CONSIDERATIONS 

The problem of assessing the present state of that body of law serving to 
regulate the conduct of war is, in part, the result of recent changes in the 
international legal system, and particularly in the legal position of war 
itself. According to the generally accepted traditional theory the act of 
resorting to war was interpreted, save in exceptional circumstances, as being 
neither legal nor illegal, but simply a fact, situation or event which oc- 
curred periodically in the relations among states. 1 International law took 
cognizance of this event mainly through the provision of rules, the law of 
war and neutrality, designed to regulate the conduct of states once war did 
occur. 

States actively participating in a war were therefore considered as pos- 
sessing equal legal status as far as the war itself was concerned, this equality 
of legal status being the logical result of the purported liberty states had 
under customary international law to resort to war. In addition, the 
duties imposed and the rights conferred upon states participating in war 
presupposed a similar equality of legal status in the conduct of war. It 
also followed that the effects of war, territorial or otherwise, as registered 
principally through treaties of peace, created no special problems with re- 
spect to their validity. Finally, those states not choosing to participate in 
a war were governed, in their relations with the belligerents, by a special 

1 Not infrequently the resort to war was considered by writers to be "extra-legal," much 
as an event occurring in nature (e. g., an earthquake or flood) can be extra-legal. See A. D. 
McNair, "Collective Security," British Yearbook of International Law (cited throughout as 

B. Y. I. L.), 17 (1936), p. 151. The act of resorting to war can hardly be considered a natural 
event, however. It is, most thoroughly, a social action, and as such must be regarded as being 
either legal or illegal, as being either permitted or forbidden. Of course, it is not infrequent 
that an act may be permitted in a negative sense; though not specifically authorized by law, it 
is not legally forbidden since the law does not attach a sanction to the commission of the act. 
In the latter instance the act must be regarded as legal, and this would seem to be the correct 
explanation of the "extra-legal" interpretation of war. Thus Julius Stone states that: "Custom- 
ary international law, indeed, does not even regulate the occasions on which extreme private 
force (i. e., war) may be resorted to by States inter se. Resort to war was neither legal nor 
illegal; international law suffered, as it were, a kind of blackout while the choice of peace or 
war was being made." Legal Controls of International Conflict (1954), p. Z97. Later, however, 
Professor Stone speaks of the "liberty of States to resort to war under customary international 
law" (p. 303). 

399334—57 2 3 



set of rules, whose principal purpose was to insure the strict impartiality of 
the non-participants in their behavior toward the belligerents. 

It is unnecessary for present purposes to discuss or to criticize in any de- 
tail this traditional interpretation of war. Despite the fact that its accept- 
ance made very doubtful the legal character of this so-called system of law, 
it was by no means an inaccurate reflection of the actual practices of states. 
However, the developments effected principally by the Covenant of the 
League of Nations, the General Treaty For the Renunciation of War (Kel- 
logg-Briand Pact), and the Charter of the United Nations have resulted in 
the general abandonment of this traditional interpretation of war. For all 
three instruments are characterized by the distinction they make between 
a legal and an illegal resort to war. Indeed, the Charter of the United Na- 
tions goes much further than did the Covenant and the Kellogg- Briand Pact 
in avoiding altogether the use of the term "war." The Charter attempts 
to ensure — mainly through Article i, paragraph 4 2 — that a distinction 
shall henceforth be made between the lawful and the unlawful resort to 
armed force. In principle, then, it is now possible to assert that the place 
of war in the international legal order has undergone a fundamental change. 
The resort to war can no longer be regarded as an act which states are at 
liberty to take for whatever reason they may deem proper. 3 

As a result of this general transformation in the legal position of war the 
question has been raised as to whether it is correct to assume the continued 
validity of the law that traditionally has served to regulate the conduct of 
war. Insofar as belligerents are no longer to be regarded as legally equal 
with respect to the act of initiating a war, and the resort to war is no longer 
a matter of indifference to the international legal order, then it would appear 
to some as contrary to principle to continue to assume equality with respect 
to the duties imposed and the rights conferred upon belligerents in the 
actual conduct of war. The suggestion has therefore been made that in a 
war waged unlawfully by one side, and particularly a war that assumes the 
character of a United Nations' enforcement action, the traditional law 
legulating inter-belligerent relations must be considered as substantially 
modified in its operation. 4 

The contention that the rules regulating inter-belligerent relations are 
no longer wholly operative when one side is waging an unlawful war is 
frequently based upon an application of the principle — assumed to be a 

2 Article i, paragraph 4: "All members shall refrain in their international relations from 
the threat or use of force against the territorial integrity or political independence of any state, 
or in any other manner inconsistent with the Purposes of the United Nations." 

3 For further reflections on the nature of this change in the legal position of war — particularly 
in relation to the present status of neutrality — see pp. 165-71. 

4 A quite different problem concerns the effects of the changed legal position of war, and 
the obligations incurred by states within a system of collective security, upon the institution 
of neutrality, especially if this institution is characterized by the principle of strict impartiality. 
See pp. 171-80 for an analysis of these and related problems. 

4 



principle of positive international law — ex injuria jus non oritur. Illegal 
acts cannot become a source of new legal rights beneficial to the wrongdoer. 
Yet if illegal acts may not serve to establish new legal rights intended by 
or beneficial to the wrongdoer, how then is it possible for a state, con- 
sistently with this ptinciple, to acquire by virtue of its illegal acts those 
rights that have customarily accompanied belligerent status? The view 
that ex injuria jus non oritur is an inescapable principle of every legal order 
has led to the conclusion that a state "cannot acquire new powers under 
international law by illegal action; consequently a state which is illegally 
engaged in hostilities acquires no belligerent powers." 5 

At the same time there has been an understandable reluctance to press 
this argument to its logical conclusion, since it is recognized that a rigid 
reliance upon the principle ex injuria jus non oritur would have undesirable 
consequences. "In relation to the applicability of rules of warfare to the 
belligerent engaging in an unlawful war rigid reliance on that principle 
(i. e., ex injuria jus non oritur) would mean in practice that rules of war 
do not apply at all in a war of this nature. For, unless the aggressor has 
been defeated from the very outset ... it is impossible to visualize the 
conduct of hostilities in which one side would be bound by rules of warfare 
without benefiting from them and the other side would benefit from rules 
of warfare without being bound by them. Accordingly, any application 
to the actual conduct of war of the principle ex injuria jus non oritur would 
transform the contest into a struggle which may be subject to no regulation 
at all. The result would be the abandonment of most rules of warfare, in- 
cluding those which are of a humanitarian character." 6 



6 Quincy Wright, "The Outlawry of War and The Law of War," American Journal of Inter- 
national Law (cited throughout as A. J. I. L.), 47 (1953), pp. 370-1. Articles 2. and 3 of Harvard 
Research in International Law, Draft Convention on Rights and Duties of States in Case of Aggression 
(A. J. L L., 33 (1939), Supp. p. 82.8) read: 

"Article 2. By becoming an aggressor, a state does not acquire rights or relieve itself of 
duties. 

Article 5. (1) Subject to Article 14, an aggressor does not have any of the rights which 
it would have if it were a belligerent. Titles to property are not affected by an aggressor's 
purported exercise of such rights. (z) An aggressor has the duties which it would have if it 
were a belligerent." 

It should be noted that whereas the preceding draft articles constitute no more than a state- 
ment de lege ferenda, Professor Wright offers his opinion as one representative of the existing 
law. And for a quite recent — and influential — view leaning toward the discriminatory char- 
acter of the laws of war in an unlawful war, see "La Revision du Droit de la Guerre" (Institut 
de Droit International, Rapport des Trois — Francois, Coudert, Lauterpacht), Annuaire de 
r Institut de Droit International, 45 (1954), I, p. 555. 

6 H. Lauterpacht, "The Limits of the Operation of the Law of War," B. Y. I. L., 30 (1953), 
p. ziz. Nevertheless, Sir Hersch Lauterpacht has consistently expressed the conviction that the 
equal application of the law of war in an unlawful war represents a deviation from principle, 
justified largely out of humanitarian considerations. See, for example, Oppenheim-Lauterpacht, 
International Law (7th. ed., 195Z), vol. II, pp. Z17-ZZ. — In a recent survey of the problem, 
Professor J. L. Kunz ("The Laws of War," A. J. I. L., 50 (1956), pp. 317-zi) has pointed out 



In fact, a strict reliance upon the principle ex injuria jus non oritur pre- 
sumably would imply that all acts of killing and destruction performed 
by the armed forces of a state that has resorted unlawfully to war would be 
equally unlawful and would thereby render the authors of such acts liable 
to appropriate punishment. The well known phrase in the Charter of the 
International Military Tribunal at Nuremberg, defining as a crime against 
peace the "waging of a war of aggression," would then become literally 
true. 7 

Hence, for humanitarian reasons alone there has been a marked reticence 
to contend that the full consequences of the principle ex injuria jus non 
oritur must be drawn in the case of a state waging an unlawful war. In- 
stead, suggestions have been made that a distinction be drawn between the 
rules of warfare which bear a humanitarian character, particularly the 
rules relating to the treatment of victims of war, and other rules relating 
to the actual conduct of hostilities, only the former being considered equally 
applicable to all belligerents despite the fact that one side has resorted to 
war in violation of its international obligations. But whatever the 
specific consequences — and concessions to principle — drawn from the 
application of ex injuria jus non oritur, it is clear that the common premise 
underlying these varying consequences deserves a more careful considera- 
tion. For once the "inescapable" quality of this principle is granted its 
application becomes largely a matter of discretion; its limitation will 
depend upon the concessions made by those states waging war against an 
aggressor, concessions made either for humanitarian reasons or for reasons 
of expediency. 

As already noted, the meaning of the principle ex injuria jus non oritur is 
that a violation of law may not give rise to a new legal situation, to new 
legal rights or duties, intended by or beneficial to the wrongdoer. The 

that the majority of writers remain opposed to the discriminatory application of the law of 
war — even though hostilities have been unlawfully initiated by one side. Yet the basis for 
this continued opposition to any discriminatory application of the law of war rests largely upon 
practical considerations, and particularly those considerations that emerge from the statement 
quoted in the text above. Among many writers, however, the feeling persists that continued 
equal application of the law of war as between an aggressor and his victim is somehow contrary 
to principle; and this uneasiness mounts in the possible case of United Nations enforcement 
action bearing the character of war. Hence, one of the principal purposes of the above com- 
ments is to attempt to show that the case for discrimination is open to criticism not- only on 
practical grounds but on grounds of principle — or theory — as well. 

7 In their closing addresses before the International Military Tribunal at Nuremberg both the 
British and French Chief Prosecutors gave expression to this extreme view. The Chief British 
Prosecutor declared: "The killing of combatants in war is justifiable, both in International and 
in Municipal law, only where the war itself is legal. But where a war is illegal, as a war 
started not only in breach of the Pact of Paris but also without any sort of warning or declara- 
tion clearly is, there is nothing to justify the killing, and these murders are not to be distin- 
guished from those of any other lawless robber bands." Nazi Conspiracy and Aggression (1946), 
Supp. A, pp. 85-6. 



rule forbidding theft may not, according to this principle, give rise to 
ownership. In international law conquest as a method of acquiring terri- 
tory may not be considered as giving rise to a new legal situation, that is 
to rights and duties which would otherwise result from the acquisition of 
territory when undertaken in violation of a rule of international law for- 
bidding conquest. 8 

There are, however, serious restrictions to the operation of this principle 
in international law. The contention that the unrestricted operation of 
ex injuria jus non oritur constitutes a logical necessity for the very existence 
of a legal order cannot be maintained. The existence of law does not 
preclude the possible operation of the contrary principle ex injuria jus oritur 
(or, as some prefer, ex factis jus oritur). Illegal acts may give rise to new 
legal rights intended by or beneficial to the wrongdoer. Of course, within 
a highly centralized and consequently a very effective legal system the 
principle ex injuria jus oritur will of necessity have a severely restricted 
operation. The case is quite different in international law. 9 Here, de- 
centralization — the absence of centralized judicial, executive and legislative 
organs — and a relatively low degree of effectiveness have led to a corres- 
ponding restriction of the principle ex injuria jus non oritur.™ A state may 
violate a rule of either customary or conventional international law, and 
yet this violation may give rise to a new legal situation beneficial to the 
wrongdoer. The consequence of an illegal resort to war — or to armed 

8 In this connection, it is necessary to observe that ex injuria jus non oritur does not mean, 
though this has been assumed on occasion, that an illegal act ought not to give rise to a new- 
legal situation the legislator expressly intended to prevent through a rule of positive law. To 
so maintain would be to impute a tautological meaning to the principle. The legislator whose 
intention is to prevent a certain behavior does so by attaching a sanction to such behavior. 
He may also stipulate, however, that certain further consequences are not to follow from this 
behavior. In international law the resort to force may not only be forbidden under certain 
circumstances, in the sense that force when resorted to under these circumstances is made the 
condition of a sanction, but the law may further provide that the illegal use of force ought not 
to give rise to specific consequences intended by or beneficial to the wrongdoer (e. g., the 
acquisition of territory). The principle ex injuria jus non oritur has no application in this 
latter instance; it does not forbid what a rule of law already has expressly forbidden. It is 
of possible application only where the legislator has not expressly stipulated that an illegal 
act ought not to give rise to consequences intended by or beneficial to the wrongdoer. 

9 In rejecting the argument on behalf of the discriminatory application of the laws of war 
Professor Kunz (pp. cit., p. 318) emphasizes that: "The present primitive state of international 
law makes any analogy with an advanced municipal law futile. Even a more advanced inter- 
national law, as a law binding on great groups of men who dispose of power, will be very 
different from municipal law, which is essentially a law among individuals." 

10 The scope of such restriction will be almost inversely proportional to the effectiveness of a 
legal system. The less effective a legal system, the greater the restrictions. Up to a certain 
ill-defined point this condition may be considered compatible with law. Beyond that point 
all attempts to account for this situation bear the character of a rather strained rationalization 
of the impossible, that is the attempt to equate law with power. It is for this reason, altogether 
understandable, that many writers have been so insistent in their emphasis upon the necessity 
of an unrestricted operation of the principle ex injuria jus non oritur. 



force — may be the establishment of new legal rights and duties favorable 
to the wrongdoer. It is quite conceivable that this type of situation may 
occur under the Charter of the United Nations. 11 It did occur more than 
once under the Covenant of the League of Nations. Its occurrence under 
the Covenant did not imply that that instrument had ceased to be valid 
law. Nor would a similar event mean that the Charter had ceased to be 
valid. What it does mean is that a violation of a general rule of law may 
in time give rise to new law — to new legal rights and duties — if the illegal 
act is successfully consummated. And it will be successfully consummated 
if, and when, it is no longer effectively contested by other interested states. 
To contest effectively the illegal act can only mean to deprive the act of 
some — if not all — of the legal consequences it would otherwise have, had 
it not originated in a violation of law. 12 

But even if it is assumed that the principle ex injuria jus non oritur is opera- 
tive as against a state waging an unlawful war it does not follow that the 
aggressor is thereby deprived of the rights traditionally accorded to bellig- 
erents for the regulation of the conduct of war. To forbid, in principle, the 
resort to war — or the resort to armed force — is to prohibit a specific act. 
The principle ex injuria jus non oritur may then have the effect of preventing 
this illegal act from giving rise to a new legal situation beneficial to the 



11 The prohibition of the use of force under the Charter means, first and foremost, that the 
illegal use of force is made the condition of a sanction, which includes — though not limited to — 
the use of force as a lawful reaction. But although the use of force is in principle forbidden 
under the Charter it does not follow from that fact alone that the unlawful use of force may not 
in time give rise to a situation intended by or beneficial to the wrongdoer. The Charter does 
not contain a provision expressly prohibiting this possibility. According to the actual pro- 
visions of the Charter the Member states are under no obligation to refuse to "recognize" 
those advantages accruing to a state that has violated (and successfully so) its obligations by 
resorting to the use of force. It has been asserted that "non-recognition" in this instance is 
the only reasonable interpretation of the Charter; that we are obliged to infer that under the 
Charter the unlawful use of force has, in conformity with ex injuria jus non oritur, this effect 
(see, for example, Lauterpacht, op. cit., pp. xo8-io). But is this, in fact, the only reasonable 
interpretation? Do not the virtually unlimited powers accorded the Security Council under 
the Charter suggest that the Council may decide that the ends of peace and justice — if not 
law — are best served by recognizing the consequences of an illegal action? And if, which is more 
probable, the Security Council is unable to function as intended, there is all the more reason 
for believing that the resort to force — even though unlawful — mav give rise to a situation 
beneficial to the wrongdoer. 

12 See R. W. Tucker, "The Principle of Effectiveness in International Law," in Law and 
Politics in the World Community (essays in honor of Hans Kelsen, ed. by George A. Lipsky) 
(1953), pp. 31-48. The statements made above therefore assert the existence of a rule of 
effectiveness in international law restricting the operation of ex injuria jus non oritur, and that 
it is through the operation of this rule that an illegal act may, in time, give rise to new legal 
rights and duties beneficial to the wrongdoer. Properly conceived, there is no essential con- 
flict between this assertion of the operation of a rule of effectiveness, as a rule of positive law, 
and the general admission by writers that illegal acts may be "validated" through prescription, 
the consent of the injured party, or by general recognition. 



aggressor. More specifically, this may mean that the aggressor is not en- 
titled, though victorious, to legitimize those gains which would otherwise 
follow from his illegal act. The territory he has temporarily obtained 
through conquest, the peace treaty he attempts to impose upon the defeated 
party, and in general those rights he seeks to acquire by virtue of his victory 
are all -prima jacie deprived of legal validity. 13 But these considerations are 
quite independent of the assertion, which is here considered as unwarranted, 
that the same principle ex injuria jus non oritur must be interpreted further 
to mean that no legal consequence may result from the illegal act or that no 
legal rights of the wrongdoer may come into operation as a result of the 
act, legal rights specifically provided by law for just this very contingency. 

War — or the resort to armed force — is an action constituting a legal status 
defined by law. This status consists in bringing into operation certain 
duties and rights as between the belligerent states. The argument that the 
unlawful act of resorting to war cannot become the condition for the acqui- 
sition of certain rights by the aggressor, rights determined by the law of 
war, is in principle mistaken. From the fact that the resort to war is, 
under certain circumstances, illegal, it follows only that the counter-war 
is, as a sanction, legal. It does not of necessity follow that the duties and 
rights of belligerents are, as a matter of positive law, different in an unlaw- 
ful war from what they have been in a lawful war. Nor is it actually the 
unlawful act per se that here becomes the source of right beneficial to the 
wrongdoer; it is rather a certain status as determined by law which forms 
the necessary condition for the exercise of certain duties and rights ex- 
pressly provided for by the law. 14 

Even if it is conceded that the principle ex injuria jus non oritur is not neces- 
sarily applicable to the relationships between belligerents as determined by 
the traditional law of war, the conviction nevertheless persists that it is 



13 In time, however, this situation may nevertheless give rise, through the operation of 
the rule of effectiveness, to a new legal situation beneficial to the aggressor. Indeed, so long as 
the international legal order retains its decentralized and relatively weak character this latter 
consequence must remain a strong possibility, despite the assumed operation of ex injuria jus 
non oritur. 

14 If the argument dealt with above were really well-founded it would, again in principle, 
be applicable consistently to any violation of international law. It is not difficult, however, to 
demonstrate that it is not so applicable. The case of reprisals furnishes a convenient example. 
It is generally agreed that the reprisals an injured state may take against a delinquent state are 
subject to certain restrictions. Presumably the most important of these restrictions is that 
reprisals "must be in proportion to the wrong done, and to the amount of compulsion necessary 
to get reparation." Oppenheim-Lauterpacht, op. cit. t p. 141. But what is this restriction if 
not an obligation of the state taking the reprisal? And to whom must the obligation refer? 
Obviously to the delinquent state who possesses the right to see that "disproportionate" 
reprisals are not taken against it, and to take measures of reprisal itself in the event this rule 
of proportionality is not observed. Yet if the argument dealt with above were correct the 
delinquent state could not acquire this "new power," that is a new legal right, by virtue of 
its illegal action. 



somehow illogical or contradictory to continue to assume that the status 
and content of this law remains unchanged once the resort to war has been 
rendered, in principle, unlawful. However, there is no contradiction — at 
least no logical contradiction — involved in asserting the validity of a rule 
which prohibits in principle a certain act (the resort to war) and in asserting 
at the same time that should this act occur certain behavior (as determined 
by the rules regulating war's conduct) is to be mutually observed by the 
aggressor state as well as by those states resisting the aggression. The 
legal inequality between belligerents with respect to the war itself does not 
logically preclude their legal equality as concerns the applicability of the 
rules regulating the conduct of war. 15 

Nor does the argument appear convincing which rests upon the belief 
that the historic origin and justification of the traditional rules regulating 
belligerent relations presupposed the legal equality of the belligerents in 
relation to the war itself; and that in the absence of this legal equality as 
between belligerents there no longer remains any justification for assuming 
equality of rights and duties in the conduct of war. Whatever the historic 
origin and justification of the law of war, these considerations cannot of 
themselves affect the positive law. They suggest, at best, a disparity be- 
tween the purposes which prompted the development of this law and the 
purpose behind the attempt to prohibit war in principle. It is supposed 
that the law of war had its primary justification in the traditional interpre- 
tation of war as an "exercise of power." Assuming the effective prohibi- 
tion of this "exercise of power," and the consequent change in the interpre- 
tation of war, the conclusion is drawn that the justification for retaining 
that law serving to regulate war's conduct has also ceased to exist. 

There is strong reason, though, for maintaining that the rules of warfare 
had both their origin and justification not so much in any indifference to 
the legal character of war but in the conviction that whatever the interpre- 
tation given to war there must be rules for the regulation, and hence the 
mitigation, of war's conduct. It is not without significance that Grotius, 
though he was by no means alone in doing so, has given a classic expres- 



15 In order to avoid a similar conclusion, while nevertheless seeking to retain at least a part 
of the law of war, a distinction has been made between war "in the legal sense" and war "in 
the material sense." For example, Quincy Wright, op. cit., p. 365. This distinction seems both 
unacceptable and unnecessary. It is unacceptable because it implies that the fact or situation 
"war" is no longer recognized in law, though a part of the law of war may nevertheless apply 
to this situation. But if the law of war is at all applicable to this situation it is because this 
situation has been given a specific legal existence. Thus from the point of view of law there 
can only be war "in the legal sense." It would seem that the real'reason for the distinction 
between war "in the legal sense" and war "in the material sense" is the desire to differentiate 
between a war in which parties are legally equal as regards the war itself and a war in which 
there is not this legal equality. See, Harvard Research In International Law, Rights and Duties 
of States In Case of Aggression, op. cit., p. 82.3. 



10 



sion of this conviction. 16 Indeed, it must remain a source of some aston- 
ishment that so many writers have insisted that it is hopeless to believe 
violence (war) can be regulated — admittedly a paradox of no small pro- 
portion — and that the only solution is to do away with war itself. It 
is only a minor consideration that this opinion is not deterred by the 
fact that war has been regulated in the past, with varying degrees of 
effectiveness. More important is the dismissal of a relatively modest goal 
as being inherently unattainable and the ready acceptance of an ideal 
infinitely more difficult of realization. 17 

B. THE OPERATION OF THE LAW OF WAR 
DURING WORLD WAR II 

The contention that the changed legal position of war must of necessity 
affect the operation of the law of war finds little, if any, historical support 
in the attitude and behavior of the belligerents during the second World 
War. Although the Axis Powers were regarded as having resorted to war 
in violation of their international commitments — especially the obligations 
assumed under the Kellogg- Briand Pact — there was no disposition for that 
reason to claim that the law regulating the conduct of hostilities did not 
apply equally to all belligerents. Nor has the attitude manifested toward 
this question by war crimes tribunals contributed in any substantial measure 
to the view that a state waging an unlawful war cannot enjoy those rights 
relating to the conduct of war that have heretofore been conceded to all 
belligerents. In the vast majority of war crimes trials the question simply 
did not arise, and the assumption that even in an unlawful war the rules 
regulating the conduct of war are equally applicable to all belligerents 
appears to have been taken for granted. It was only exceptionally that 
tribunals were called upon to declare otherwise legitimate acts of warfare 
unlawful for the reason that they had been performed on behalf of a state 
waging an illegal war. In these latter cases, the decisions of tribunals 
seem to indicate — on the whole — a refusal to deduce any consequences for 



16 In his masterful essay on "The Grotian Tradition In International Law," B. Y. I. L., 
Z3 (1946), Sir Hersch Lauterpacht, while placing emphasis upon the distinction Grotius makes 
between just and unjust wars, goes on to state: "At the same time, in conformity with the 
view which has remained unchallenged and which is in accordance with the humanitarian 
character of his treatise, he (Grotius) lays down that the question of the justice or injustice of 
the war is irrelevant for the purpose of observing the rules of warfare as between the bellig- 
erents" (p. 39). 

17 See, for example, the excellent article by J. L. Kunz, "The Chaotic Status of the Laws of 
War and The Urgent Necessity for Their Revision," A. J. I. L., 45 (1951), pp. 37-61. 



XI 



the operation of the law of war from the fact that the war itself was un- 
lawful. 18 

The same attitude characterized the judgment of courts, other than war 
crimes tribunals, in applying the rules regulating the economic aspects of 
warfare, i. e., the rules governing the lawful acquisition by belligerents of 
title over enemy property. In particular, the long-established right of bel- 
ligerents to capture and condemn the public and private property of an 
enemy found at sea was not questioned, so long as the captured enemy ves- 
sels and goods were otherwise condemned in accordance with those rules 
governing the international law of prize. 19 



18 Thus the statement of the United States Military Tribunal in the Hostages Trial : ". . . we 
desire to point out that International Law makes no distinction between a lawful and an unlaw- 
ful occupant in dealing with the respective duties of occupant and population in occupied ter- 
ritory. There is no reciprocal connection between the manner of the military occupation of 
territory and the rights and duties of the occupant and population to each other after the rela- 
tionship has in fact been established. Whether the invasion was lawful or criminal is not an 
important factor in the consideration of this subject." (Trial of Wilhelm List and Others), Law 
Re forts of Trials of War Criminals (cited throughout as Law Reports . . .) 8 (1949), p. 59. In 
The Justice Trial another tribunal declared: "It is persuasively urged that the fact that Ger- 
many was waging a criminal war of aggression colours all of these acts with the dye of crimi- 
nality. ... If we should adopt the view that by reason of the fact that the war was a criminal 
war of aggression every act which would have been legal in a defensive war was illegal in this 
one, we would be forced to the conclusion that every soldier who marched under orders into 
occupied territory or who fought in the homeland was a criminal and a murderer. The rules 
of land warfare upon which the prosecution has relied would not be the measure of conduct 
and the pronouncement of guilt in any case would become a mere formality." (Trial of Josef 
Altstotter and Others), Law Reports . . ., 6 (1948), p. 5Z. — Very rarely have courts seen fit to 
deduce certain consequences for the operation of the law of war simply from the fact that the 
war itself was unlawful. In one case, the Netherlands Special Court of Cassation declared 
that Germany, as an occupant, had no right of reprisal against the Dutch population for acts 
performed by the latter which would otherwise have been unlawful according to the law of 
belligerent occupation. The apparent reason given for this opinion was the "unlawful war 
of aggression" initiated by Germany against the Kingdom of the Netherlands* (Trial of Hans 
Alben Ranter), Law Reports . . ., 14 (1949), pp. 133-8. 

19 "Neither judicial authority nor, to any substantial extent, the practice of Governments 
support the proposition that a State waging an unlawful war does not obtain or validly trans- 
mit title with respect to property acquired in connexion with the conduct of war and in accord- 
ance with international law." Lauterpacht, "The Limits of the Operation of the Law of War," 
p. 139 (for a review of cases bearing upon the acquisition by the aggressor of property in the 
course of an illegal war, pp. i.z^-^). 

In this connection it may be noted that Annex XVII (A) of the Treaty of Peace between the 
Allied and Associated Powers and Italy, Paris, 10 February 1947, provided that: "Each of the 
Allied and Associated Powers reserves the right to examine, according to a procedure to be 
established by it, all decisions and orders of the Italian Prize Courts in cases involving owner- 
ship rights of its nationals, and to recommend to the Italian Government that revision shall 
be undertaken of such of those decisions or orders as may not be in conformity with international 
law." Text in U. S. Naval War College, International Law Documents, 1046-47, p. 104. The "inter- 
national law" referred to is the traditional law of prize. 



12 



C. COLLECTIVE SECURITY AND THE OPERATION OF THE 
LAW OF WAR: THE UNITED NATIONS 20 

The preceding considerations have concentrated upon pointing out that 
there appears to be no valid reason for assuming that the changed legal po- 
sition of war must necessarily result in the alteration of the rules regulating 
inter-belligerent relations. To the extent that the experience of the second 
World War is relevant in this connection it serves to support the conclusion 
that a state unlawfully resorting to war cannot, for that reason alone, be 
deprived of established belligerent rights. It may be contended, however, 
that these considerations, even if accepted, can have only a limited bearing 
upon the present situation; that they are relevant mainly as applied to the 
period prior to the establishment of the United Nations. Whereas the 
Covenant of the League of Nations and the Kellogg-Briand Pact sought to 
place limitations upon the customary liberty of states to resort to war, both 
instruments recognized that war might nevertheless be resorted to by a state 
in violation of its obligations. Neither instrument provided for a pro- 
cedure whereby the unlawful resort to war could be determined authorita- 
tively, in a manner the signatory Parties were bound to accept. Although 
each state that was a Member of the League or a Party to the Paris Pact had 
the right to determine for itself when an unlawful resort to war had oc- 
curred, such determination — or interpretation — had no binding effect upon 
other states. Nor did either instrument provide for the establishment of 
an international armed force apart from the armed forces of the various 
states. In particular, the illegal "resort to war" under Article 16 of the 
Covenant presupposed the creation of a state of war between the state vi- 
olating its obligations and other Member states choosing to resort to a 
counter-war. Despite the contemplated coordination of effort on the part 
of those states waging a counter-war under Article 16 there seems to have 
been little doubt that the rules of war would apply to such action. 21 

In brief, although the Covenant of the League of Nations and the Kellogg- 
Briand Pact placed limitations upon the circumstances under which war 
could be resorted to lawfully it was clearly assumed that war continued to 
enjoy a legal existence. But even more important was the fact that neither 
instrument overcame the noimal conditions of decentralization that served 



20 It must be made clear that the following pages are concerned only with inquiring into 
the possible effect of recent developments in collective security upon the operation of the 
law of war. The reader must look to other sources should he desire a detailed and systematic 
analysis of these recent developments. Among a vast literature, of particular value for further 
reference are Hans Kelsen, The Law of the United Nations (195 1), and Julius Stone, op. cit. y 
pp. 165-2.93. 

21 Reports and Resolutions on the Subject of Article 16 of the Covenant, Report by the Secretary- 
General, League of Nations Doc. A. 14. 19x7 V., pp. 83-7. See also H. J. Taubenfeld, 
"International Armed Forces and the Rules of War," A. J. I. L., 45 (195 1), pp. 6ji-±. 



13 



in large measure to provide the justification for the traditional interpreta- 
tion of war. This decentralization not only implied the absence of a pro- 
cedure which would make possible an authoritative judgment that in a 
given instance a state had unlawfully resorted to war; it also rendered 
doubtful whether a counter-war could technically serve as an enforcement 
measure — as a sanction — in view of the unknown outcome of almost every 
war. 

The Charter of the United Nations, on the other hand, has been inter- 
preted as effecting basic changes in the conditions that appeared to justify 
the traditional interpretation of war and that provided a favorable environ- 
ment for the development of the law of war. Not only does the Charter 
refrain from the use of the term "war," speaking only of the illegal use of 
armed force (or of armed attacks) and of enforcement measures to be taken 
by the Organization, it also establishes a procedure whereby the unlawful 
resort to armed force can be determined in a manner binding upon the Mem- 
ber states. 22 In addition, the Charter provides for the establishment of 
what may appropriately be termed an international armed force, as dis- 
tinguished from the armed forces of the Member states. 23 It is the assump- 
tion of the effective realization of these Charter provisions in practice that 
generally forms the basis of suggestions that the United Nations may select 
from the traditional law of war those rules considered desirable to govern 
the conduct of international armed forces and may determine the obligations 



22 This is, in principle, the result of Articles Z4, Z5 and 39 of the Charter. According to 
Article 2.4 the Members of the United Nations confer on the Security Council "primary respon- 
sibility for the maintenance of international peace and security" and agree that in carrying out 
its duties the Security Council "acts on their behalf." In Article Z5, the Members agree "to 
accept and carry out the decisions of the Security Council in accordance with the present 
Charter." Article 39 declares that the Security Council "shall determine the existence of any 
threat to the peace, breach of the peace, or act of aggression and shall make recommendations, 
or decide what measures shall be taken in accordance with Articles 41 and 41, to maintain or 
restore international peace and security." Article 41 refers to acts not involving the use of 
armed force, Article 42. to acts involving the use of armed force. 

23 The statement in the text presupposes, of course, the conclusion of the agreements provided 
for in Article 43, whereby the Members of the United Nations "undertake to make available 
to the Security Council, on its call and in accordance with a special agreement or agreements, 
armed forces, assistance, and facilities, including rights of passage, necessary for the purpose 
of maintaining international peace and security." Article 47 authorizes establishment of a 
Military Staff Committee, and stipulates that one of the Committee's principal functions is to 
advise and assist the Security Council on questions relating to the "employment and command 
of forces placed at its [i. e., the Security Council's] disposal." In their composition the armed 
forces placed at the disposal of the Security Council would still remain units of the armed 
forces of the various Member states. Nevertheless, they could appropriately be designated 
as "international" armed forces, and, in this respect distinguished from "national" armed 
forces, by virtue of the fact that they would be placed at the disposal of the Security Council 
and would operate under its strategic direction and command. See, for example, Kelsen, 
op. cit., pp. 761-8. To date, no agreements of the nature referred to in Article 43 have been 
concluded. Nor is there any real prospect of their conclusion in the foreseeable future. 

14 



and rights of the delinquent state(s) against which enforcement action is 
taken. 24 

In view of the present realities of international organization the assump- 
tion that the Security Council may make effective use of the powers granted 
it under Chapter VII of the Charter must clearly be regarded as improbable; 
so improbable, in fact, that the utility of a careful examination of the pos- 
sible effect of this situation on the operation of the law of war appears dis- 
tinctly limited. It may be observed, however, that it is by no means certain 
that even if this situation were realized the law of war would thereby cease 
to be equally applicable as between the international armed forces and the 
national armed forces against which action is taken. Whether or not these 
rules would cease to be applicable is a question that poses many difficult 
considerations. It is at least doubtful that these considerations can be 
resolved by inferential or deductive judgments which assert, in effect, that 
the law of the Charter may be interpreted to imply a change in the status 
and content of the law of war as one of its necessary effects. 25 In the ab- 
sence of any reference — direct or indirect — to this matter in the Charter 
itself, the resulting uncertainty can be resolved only by a clear manifestation 
of the intention of the Member states of the United Nations. The most 
satisfactory methods for manifesting this intention would consist either in 
an amendment to the Charter or in a convention concluded by the General 
Assembly and ratified by all of the Member states. At the very least it 
would appear necessary that the intention to modify the rules of war in 
United Nations enforcement actions be established by a clear and effective 
practice to this effect. 

In particular, 26 however, it is not sufficient to contend that in hostilities 
undertaken by national armed forces acting in response to a mere recommenda- 
tion of the Security Council a change in the status and content of the rules 
of war must be assumed for the reason that the ' ' United Nations acting on 
behalf of the organized community of nations against an offender, has a 
superior legal and moral position as compared with the other party to the 



24 For proposals to this effect, see Philip C. Jessup, A Modern Law of Nations (1948), pp. 
188-izi. Also Taubenfeld, op. cit., pp. 671-7. 

25 It is in this sense that Lauterpacht's remarks may be understood when, in referring to the 
possible effect of the Charter upon the law of war, he states: "... once a treaty has been 
adopted which is of fundamental and comprehensive character, it is difficult — and probably 
unscientific — to act on the view that it settles only that part of the law to which it expressly 
refers and nothing else. A treaty is not concluded in a legal vacuum. It is part of a legal system 
which, for that very reason, cannot contain rules which are contradictory. Any such contradic- 
tion must be removed by a reasonable application of the principle that newly enacted law, if 
it is of a general and fundamental character, alters rules inconsistent therewith." op. cit., p. Z09. 

28 The remarks made in the immediate paragraph of the text are largely relevant to the 
particular circumstances attending the outbreak of hostilities in Korea — circumstances dealt 
with in the following paragraphs — and must be read with this consideration in mind. 



15 



conflict." 27 As already noted, there is at present almost no possibility of 
the United Nations as such * ' acting on behalf ' of the community of nations, 
implying thereby the existence of international armed forces at the disposal 
of the Organization, used to defend the legitimate interests of the Member 
states. On the contrary, the most reasonably optimistic situation — and 
the situation probably referred to in the above quoted statement — is that of 
national forces "acting on behalf of the United Nations," that is acting in 
conformity with a determination taken by a competent organ (at present 
only the Security Council) of the United Nations. 28 It is true that the 
legal position of states whose armed forces are acting on behalf of the 
United Nations — in the sense indicated above — is superior to the position 
of those parties unlawfully resorting to force. But this superiority does 
not of itself yield a right to modify the rules regulating war's conduct. 

Thus the hostilities undertaken in Korea by Member states of the United 
Nations were preceded by a determination of the Security Council that the 
action of North Korea constituted a breach of the peace and a recommendation 
of the Council that members of the United Nations furnish assistance — 
including armed forces — to repel this unlawful action and to restore inter- 
national peace and security. 29 It is possible to consider those states re- 

27 Report of Committee on Study of Legal Problems of the United Nations, "Should The 
Law of War Apply to United Nations Enforcement Action?' ' Proceedings, American Society of 
International Law (195x3, p. 2.17. The report of the Committee, which has reference primarily 
to the Korean action, concludes that: ". . . in the present circumstances . . . the United Na- 
tions should not feel bound by all the laws of war, but should select such of the laws of war 
as may seem to fit its purpose (e. g., prisoners of war, belligerent occupation), adding such 
others as may be needed, and rejecting those which seem incompatible with its purpose. We 
think it beyond doubt that the United Nations, representing practically all the nations of the 
earth, has the right to make such decisions." 

28 But a "determination" (e. g., that a "breach of the peace" has occurred) which does 
not — and in the Korean Case did not — impose upon Member states the obligation to take meas- 
ures involving the use of armed force against the party unlawfully resorting to force. 

29 In its resolution of June 2.5, 1950 (U. N. Security Council, Official Records, $th year, No. ij 
(Doc. S/ijoi) p. 18.), the Security Council, after determining that the armed attack upon the 
Republic of Korea by forces from North Korea constituted a "breach of the peace," called for 
the immediate cessation of hostilities and for the "authorities of North Korea to withdraw 
forthwith their armed forces to the thirty-eighth parallel." In addition, the Council called 
upon all Members "to render every assistance to the United Nations in the execution of this 
resolution and to refrain from giving assistance to the North Korean authorities." In its 
resolution of June %j, 1950 (U. N. Doc. S 1 15 11) the Council merely recommended that: "Members 
of the United Nations furnish such assistance to the Republic of Korea as may be necessary 
to repel the armed attack and to restore international peace and security within the area." 
On July 7, 1950, the Security Council adopted a resolution (U. N. Doc. SI1588) in which it 
welcomed the "prompt and vigorous support" given its earlier resolutions, noted the offers 
of assistance for the Republic of Korea on the part of Members, recommended that "all Mem- 
bers providing military forces and other assistance . . . make such forces and other assistance 
available to a unified command under the United States," requested the United States to desig- 
nate the commander of such forces, authorized the use of the United Nations flag by the Unified 
Command, and requested the United States to provide the Council with periodic reports on 
the course of action taken under the Unified Command. 

16 



sponding to this recommendation as having acted "on behalf" of the 
United Nations. 30 There was no suggestion emanating from authoritative 
sources, however, that the opposing parties to this conflict were not equally 
bound by the existing rules of war. Neither the refusal to designate these 



30 This possibility necessarily assumes that the resolutions of the Security Council in the 
Korean Case— and particularly the resolution of June 2.5 — not only were permitted by the 
Charter but that they imposed certain obligations and conferred certain rights upon the Member 
states. It will be recalled thac the resolutions in question were passed in the absence of the 
Soviet Union. The question therefore arose as to whether valid decisions on nonprocedural 
matters could be made in the absence of a permanent Member (and a Member who later chal- 
lenges the validity of such decisions). The opinions of writers have been sharply divided on 
this question. An impressive negative reply has been given by Julius Stone, op. cit., pp. 107-1 z, 
and Leo Gross, "Voting in the Security Council: Abstention from Voting and Absence from 
Meetings," Yale Law Journal, 60 (195 1), pp. Z09-57. For an affirmative reply see Myres S. 
McDougal and Richard N. Gardner, "The Veto and The Charter: An Interpretation for Sur- 
vival," Yale Law Journal, 60 (1951), pp. Z58-9Z. And for an argument holding both answers 
equally possible, see Kelsen, op. cit., pp. Z90-4, 940-1. 

If the view is taken that an affirmative reply to the above question is possible — and it is the 
view adopted here — the problem remains of determining the duties imposed and the rights con- 
ferred upon Member states. Although the resolution of June Z5 called upon all Members to 
render every assistance to the United Nations in the execution of that resolution it is extremely 
difficult — if not impossible — to contend that Member states were under any obligation to take 
active measures in support of South Korea, and particularly measures involving the use of 
armed force. This view is supported by the fact that the Security Council's two later resolu- 
tions merely recommended that Member states furnish assistance — including armed forces — to 
the Republic of Korea. The Security Council expressly refrained from making any decision 
under Article 39 to order those enforcement measures provided for in Article 4Z. It must be 
further observed that the obligation of Member states to take measures of armed force provided 
for in Article 4Z is probably dependent upon the conclusion of the special agreements provided 
for in Article 43. In the absence of such agreements it is entirely doubtful that the Security 
Council is competent to obligate Member states to take military measures against a party con- 
sidered by the Council to have committed a threat to or breach of the peace. For these reasons 
it does not appear possible to characterize the action in Korea as a "United Nations enforcement 
action" — at least not in the strict legal sense — since this would imply an enforcement action 
ordered by the Security Council under Articles 39 and 4Z. Similar doubt must be expressed over 
the accuracy of references to "United Nations forces" in Korea. The Unified Command in 
Korea was not created by the Security Council in conformity with Article Z9 of the Charter. 
Strictly speaking the Unified Command was not an "organ" of the United Nations and the 
forces serving under this command were not — again in a strict sense — "United Nations forces." 
See, in this respect, Kelsen, op. cit., pp. 936-40 and the excellent remarks of Richard R. Baxter, 
"Constitutional Forms and Some Legal Problems of International Military Command," 
B. Y. I. L., Z9 (195Z), pp. 333-7. 

On the other hand, it can be maintained that Member states were at least under the obligation 
"to refrain from giving assistance to the North Korean authorities." In addition, it seems 
clear that the effect of the Security Council's determination of a breach of the peace and of its 
later recommendations was to confer upon Members the right to take measures of armed force in 
support of the Republic of Korea. In so doing Member states acted "on behalf" of the United 
Nations, even though their action may not be strictly characterized as a "United Nations en- 
forcement action." Of course, it may be contended that even in the absence of any Security 
Council action, under Article 51 (see p. 18) Member states could have claimed the right to 
assist in the collective defense of the Republic of Korea (though this requires interpreting Article 

17 



hostilities as "war" nor the questionable insistence upon considering the 
national contingents involved as "United Nations troops" 31 affected the 
application of the international law of war. On the contrary, there was 
on more than one occasion express affirmation that both the aggressor 
forces and the forces acting on behalf of the United Nations were equally 
obligated to conform in their actions to the law of war. It is quite true 
that in the Korean conflict the primary concern was to secure the observance 
of those rules governing the treatment by belligerents of prisoners of war. 
The rules governing the behavior of armed forces in actual combat received 
only minor consideration. But this does not detract ftom the conclusion 
that the Korean conflict saw no substantial alteration in the status and 
content of the rules regulating inter-belligerent relations. 

The circumstances attending the outbreak of hostilities in Korea must be 
regarded as exceptional, however. In view of the factors which render any 
future decisions by the Security Council under Chapter VII extremely un- 
likely, 32 the most probable situation is that of armed conflict being waged 
under Article 51 of the Charter. 33 Each side must be expected to maintain 
that it is acting in self-defense — or collective defense — against an aggressor, 
with no subsequent decision taken either by the Security Council or by any 
other organ endowed with the proper competence to review — particularly 
while hostilities last — the competing claims of the contending parties. 
This situation would then resemble, in its essential features, that of World 
War II, and there would seem little doubt that in such a conflict the rules 



51 as applying — despite its wording — to non-Member states as well). At the same time, it 
must be admitted that there is a substantial difference between the resort to armed force under 
Article 51, and without any authoritative determination of the party that has unlawfully re- 
sorted to an armed attack, and the resort to armed force when taken in conformity with a valid 
determination to that effect by the Security Council (here again, the assumption being that 
such determination in the Korean Case was valid.). 

For a quite different point of view from that taken in the present note, see particularly the 
learned and stimulating analysis of the Korean affair advanced by Professor Stone, op. cit., 
pp. 118-37. 

31 See note 30 above. 

32 I. e., the voting provisions of the Charter, requiring as they do the unanimity of the 
permanent Members on any decisions — or determinations — taken under Chapter VII. And while 
it may be argued that Article 17 does not forbid such decisions in the absence of a permanent 
Member, it is altogether improbable that a permanent Member will ever again. absent itself 
from the Council during a critical period. 

33 Article 51 reads: "Nothing in the present Charter shall impair the inherent right of in- 
dividual or collective self-defense if an armed attack occurs against a Member of the United 
Nations, until the Security Council has taken the measures necessary to maintain international 
peace and security. Measures taken by Members in the exercise of this right of self-defense 
shall be immediately reported to the Security Council and shall not in any way affect the author- 
ity and responsibility of the Security Council under the present Charter to take at any time such 
action as it deems necessary in order to maintain or restore international peace and security." 



18 



regulating the conduct of war would be fully applicable as between the 
belligerents. 34 

The above situation would not be substantially altered by the attempt, 
incident upon the outbreak of armed conflict, to obtain a "collective deter- 
mination" of the party unlawfully resorting to armed force by a decision 
reached under the General Assembly Resolution "Uniting For Peace." 35 
At present, such collective determinations the General Assembly may make 
under the Resolution ' ' Uniting For Peace' ' constitute only recommendations 
to the Members. Although expressive of the opinion of the majority of 
states making up the Organization, these recommendations do not create 
legal obligations for the Member states. 2Q Nor, for that reason, may the 
nature of these recommendations be compared with the decisions the 
Security Council is competent to render under Articles 39, 41 and 41 of the 
Charter. It is also necessary to distinguish between the "collective meas- 
ures" that may be taken by the national armed forces of Member states 
acting in response to a recommendation of the General Assembly and 

34 Occasionally, the opinion has been expressed that the situation resulting from the inability 
of the Security Council to reach an authoritative determination (of the party unlawfully resort- 
ing to the use of force) under Chapter VII of the Charter can be overcome by other, and equally 
binding, procedures. Thus Professor Quincy Wright states that: "While in some cases it may 
be difficult to obtain a decision as to the justifiability of a particular use of force because of the 
veto in the Security Council, customary international law provides a procedure, that of general 
recognition, applicable when conventional procedures fail to function." op. cit., p. 370. The 
same writer has suggested that a two-thirds vote of the states making up the General Assembly 
will suffice for such "general recognition." It is difficult to find a basis in existing law in 
support of this opinion. 

35 For text of Resolution, see U. N. General Assembly, Official Records, jth Sess. Supp. No. 20 
(Doc. Ajiyjj), p. 10. The heart of this resolution is to be found in two operating paragraphs 
which read — in part — as folio ws: 

"The General Assembly, . . . 

1. Resolves that if the Security Council, because of lack of unanimity of the permanent 
members, fails to exercise its primary responsibility for the maintenance of international peace 
and security in any case where there appears to be a threat to the peace, breach of the peace, 
or act of aggression, the General Assembly shall consider the matter immediately with a view 
to making appropriate recommendations to Members for collective measures, including in the 
case of a breach of the peace or act of aggression the use of armed force when necessary, to 
maintain or restore international peace and security. . . . 

8. Recommends to the States Members of the United Nations that each Member maintain 
within its national armed forces elements so trained, organized, and equipped that they could 
promptly be made available, in accordance with its constitutional processes, for service as a 
United Nations unit or units, upon recommendation by the Security Council or the General 
Assembly, without prejudice to the use of such elements in exercise of the right of individual 
or collective self-defense recognized in Article 51 of the Charter." 

86 "There is no warrant in the Charter for considering the designation of the aggressor 
by virtue of a Resolution of the General Assembly, and the resulting illegality of war on his 
part, as legally binding upon States which have not voted for the Resolution." Lauterpacht, 
op. cit., p. 2.07. Indeed, there is no warrant for regarding the designation of an aggressor by 
virtue of a General Assembly Resolution as legally binding even upon states which have voted 
for the resolution. 

399334—57 3 19 



measures of a collective character taken by national armed forces acting not 
merely in response to a recommendation of the Security Council but also in 
conformity with an authoritative determination of the aggressor by that 
same organ. 37 Although a considerable degree of coordination may be 
achieved among the national armed forces of Member states acting in re- 
sponse to General Assembly recommendations made under the "Uniting 
For Peace" Resolution, the present character of such recommendations does 
not appear to ?llow the conclusion that these forces may be considered as 
acting "on behalf" of the United Nations. Indeed, there would seem to be 
no substantial reason for differentiating between the coordination of collec- 
tive military measures made in response to General Assembly recommenda- 
tions and the coordination of collective defense measures allowed to Mem- 
ber states under Article 51 of the Charter, even though the moral authority 
with which the former would be endowed ought not to be neglected. In 
any event, it is significant to observe that the reports submitted to date by 
the Collective Measures Committee, established under the "Uniting For 
Peace" Resolution, 38 contain no suggestion that the rules traditionally regu- 
lating the conduct of hostilities between belligerents ought not to apply to 
hostilities undertaken in response to General Assembly recommendations. 
To the extent that the Collective Measures Committee has dealt with the 
question of the applicability of the law of war there is the assumption that 
these rules will continue to be applicable. 39 

37 Once again, the evident basis for the statement made in the text is provided by the cirtum- 
stances attending the outbreak of the Korean hostilities. See notes 19 and 30 above. 

38 Paragraph 11 of the "Uniting For Peace" Resolution establishes "a Collective Measures 
Committee consisting of fourteen Members" and directs the Committee "in consultation with 
the Secretary-General and with Member states as the Committee finds appropriate, to study 
and make a report to the Security Council and the General Assembly, not later than September 
1, 1951, on methods . . . which might be used to maintain and strengthen international peace 
and security in accordance with the Purposes and Principles of the Charter, taking account of 
collective self-defense and regional arrangements ..." Since its establishment, the Collective 
Measures Committee has issued several reports. The first, and basic, report was completed in 
195 1 ; see U. N. General Assembly, Official Records, 6th Sess. Supp. No. 13 (Doc. Aji8gi). 

39 Paragraph Z46 of the first report of the Collective Measures Committee (U. N. Doc. A/1891, 
p. 19) states that: "In any future operations, the executive military authority designated by 
the United Nations should follow the humanitarian principles applied and recognized by 
civilized nations involved in armed conflict. In particular, the special position and functions 
of the International Committee of the Red Cross should be recognized, and its activities assisted, 
by the executive military authority." The "executive military authority" is to comprise a 
state or a group of states. Thus the Collective Measures Committee Report states that "upon 
the determination to adopt measures involving the use of United Nations armed force, the 
Organization should authorize a State or group of States to act on its behalf as executive mili- 
tary authority, within the framework of its policies and objectives as expressed through such 
resolutions as it may adopt at any stage of the collective action" (p. Z5). At present, however, 
the executive military authority would not act "on behalf" of the Organization, but rather 
on behalf of the Member states of the Organization which decide to adopt collective military 
measures. Throughout the report the example of Korea is used as a guide and precedent a pre- 
cedent which is apt to prove misleading. Although the forces acting in Korea could properly 

20 



D. CONCLUSIONS 

It may be useful, at this point, to summarize the principal conclusions 
that appear to emerge from the preceding examination of the possible effects 
of the changed legal position of war on the operation of the law of war. In 
addition, brief attention will be directed to those situations involving the 
use of armed force between states, though situations not recognized by the 
parties involved as war, in which the law of war — or at least a part of this 
law — may nevertheless be considered as operative. 

(i) A clear distinction must be drawn between the legality of the act of 
resorting to war and the applicability of the rules regulating the conduct of 
war. The fact that the resort to war has been rendered, in principle, un- 
lawful does not compel the conclusion that in a war illegally resorted to by 
one side the rules regulating inter-belligeient relations are either inappli- 
cable or substantially modified in their operation. 40 The rights conferred 
and the duties imposed upon belligerents in the conduct of war are not 
dependent for their operation upon an equality of legal status as concerns 
the war itself. Nor does it appear correct to assume that, given the changed 
legal position of war, a continued equality of belligerent status with respect 
to the rules regulating war's conduct is contrary to the principle ex injuria 
jus non oritur. For this principle ought not to be interpreted to mean that 
no legal rights may accrue to the lawbreaker as a result of his unlawful act, 
particularly those legal rights that have been expressly provided by law 
for just that situation arising out of the unlawful act. 

(2.) To the extent that the applicability of the law of war is to be re- 
stricted in its operation by virtue of the changed legal position of war in 
international law such restriction can be brought about only through the 
customary practice of states or by convention. Neither the Covenant of the 
League of Nations nor the Kellogg-Briand Pact have been interpreted as so 
restricting the operation of the law of war. It also seems clear that neither 



be considered as acting "on behalf" of the United Nations, the same phrase when used to 
describe the action of forces responding to a General Assembly recommendation overlooks the 
decisive legal difference between hostilities whose character rests upon a determination rendered 
by the Security Council under Article 39 of the Charter and hostilities whose character is deter- 
mined by a recommendation of the General Assembly. Nor is it accurate to speak, as does the 
above report, of "measures involving the use of United Nations armed force," the obvious 
intention being to include in this term the national armed forces of Member states acting in 
response to General Assembly recommendations. For such forces bear to an even smaller degree 
the appellation of "United Nations armed forces" than did the armed forces serving in Korea — 
forces whose status has already been commented upon. — Once again, the general observation 
should be made that the decisions taken and the collective measures applied by virtue of the 
"Uniting for Peace" resolution do not substantially differ at present from decisions and measures 
of collective defense taken under Article 51. The altogether commendable desire to strengthen 
the present system of collective security should not serve to obscure this basic consideration. 
40 Law of Naval Warfare (see Appendix), Section xoo. 

21 



the attitude of the belligerents during World War II nor the decisions ren- 
dered by courts in applying the law of war provide any solid basis for the 
opinion that the changed legal status of war has affected the applicability 
of the law of war. 

(3) In general, it is difficult to establish any significant restriction on 
the operation of the rules regulating inter-belligerent relations consequent 
upon the avoidance of the term "war" in the Charter of the United Nations. 
(On the contrary, it is more than likely, as will be noted, that the Charter 
will have the contrary effect, i. e., of expanding the situations in which the 
law of war is applicable.) By forbidding to member states the use of armed 
force in their mutual relations, save as a measure taken in conformity with 
a decision of the Security Council or as a measure of individual or collective 
defense against an armed attack, the Charter seeks to regulate every use of 
armed force and not only the use of armed force which assumes the character 
of war. It has already been noted that the refusal on the part of certain 
states to designate the hostilities in Korea as "war" did not, for that 
reason, have any appreciable effect upon the operation of the international 41 
law of war as this law applies to the mutual relations of belligerents. The 
same absence of effect upon the operation of the law of war will probably 
hold for future occasions, similar to Korea, in which states wish to avoid 
the use of the term war, mainly in order to give hostilities what is consid- 
ered to be a higher dignity and purpose (i. e., by terming such hostilities 
"international police actions," "measures of collective defense") than war 
had according to the traditional doctrine. But it would seem a mistake to 
attach too great significance to verbal devices, particularly at the expense 
of legal reality. Insofar as the law of war is applied as between the parties 
to an armed conflict the legal relevance — or, rather, the lack of legal rele- 
vance — in refusing to term such a conflict war should be clearly understood. 
(4) The assertion that the rules of warfare would not apply to inter- 
national armed forces engaged in a United Nations enforcement action, must 
be very seriously questioned. Neither the principle ex injuria jus non oritur 
nor the admittedly superior legal position of the forces undertaking United 
Nations enforcement actions provide sufficient basis for contending against 
the continued applicability of the rules regulating inter-belligerent relations. 
Besides, given the present state of international organization these questions 
can possess no more than a remote hypothetical significance. At the very 

41 On the other hand, this refusal to designate the contest in Korea as war has had certain 
effects in relation to the decisions of municipal courts and the operation of municipal legislation 
intended for periods of war. It is, of course, always necessary to distinguish between the 
operation of municipal legislation, dependent upon a status or condition of war as defined by 
municipal law, and the operation of the international law of war. For some effects of this 
distinction in the case of Korea, see Lauterpacht, op. cit., pp. 111-3. ^ n t ^ ie United States the 
highest military court, the United States Court of Military Appeals, considered the Korean 
conflict as war for the purpose of applying the provisions of the Uniform Code of Military 
Justice. 

22 



least, they must assume not only an authoritative determination by the 
Security Council of the party unlawfully resorting to armed force, but also 
the actual direction by this organ of the armed forces of Member states under- 
taking enforcement measures against the aggressor. National armed forces 
acting under the direction of the Security Council do so in response to a Coun- 
cil decision imposing a legal obligation upon the Member states. The ex- 
ceptional conditions accompanying the outbreak of hostilities in Korea 
may be interpreted as having permitted the fulfillment of the first of these 
conditions, though not the second. And Korea is not likely to be repeated. 
The strong probability, then, is that in a future resort to armed conflict 
there will be no authoritative determination of the aggressor. Although 
it is not at all unlikely that in the event of hostilities some kind of collective 
determination will be made of the party considered to have unlawfully re- 
sorted to armed force, possibly under Article 5 1 of the Charter or according 
tc the "Uniting For Peace" Resolution, such determination cannot be con- 
sidered at present as binding — in any legally relevant sense — upon those 
states dissenting from it. Under these circumstances there is still less reason 
for asserting any restrictions upon the operation of the rules regulating 
war's conduct. 

(5) Recent practice would appear to indicate that, ii anything, the situa- 
tions in which the law of war is considered applicable have expanded rather 
than contracted. 42 There is, in fact, a discernible tendency today to attempt 
to apply at least a substantial part of the rules governing the weapons and 
methods of war, and particularly the rules regulating the treatment of vic- 
tims of war, to situations in which the parties engaged in armed conflict 
refrain from making a declaration of war and, at the same time, deny any 
intent of waging war. The evident purpose of this growing effort may be 
rightly described as the humanitarian one of extending as widely as possible 
the beneficial effects resulting from the application of the law of war. 

Thus Article 2. common to the four 1949 Geneva Conventions for the 
Protection of the Victims of War, provides that the provisions of these 
Conventions are to be regarded as applicable ' ' to all cases of declared war 
or of any other armed conflict which may arise between two or more of the 
High Contracting Parties, even if the state of war is not recognized by one 
of them." The apparent intent of those drafting this article was to make 
the Geneva Conventions applicable to all international armed conflicts, 
without regard to whether or not such conflicts are recognized as war by 
the parties involved, though the wording of the article is not altogether 

42 See Law of Naval Warfare, Section no and notes thereto. In a sense, the tendency to apply 
the rules of war — or, at least, a substantial part of these rules — to armed conflicts regardless 
of whether these conflicts are considered by the parties involved as war finds a certain parallel 
in the attempt made in the Charter of the United Nations to regulate the resort to armed force 
generally and not merely the resort to war. 



23 



adequate in meeting this purpose. 43 It is also apparent that the 1949 
Geneva Conventions are fully applicable either in the case of an illegal resort 
to war or an illegal resort to armed force; no differentiation is made in this 
respect, or even suggested, as between the rights and duties of the con- 
tracting parties. 

At the same time, it is difficult to determine the precise extent to which 
other rules regulating the conduct of war apply to situations in which 
states — engaged in armed conflict — neither make a declaration of war 44 
nor admit the intent of waging war. Although it has been claimed that 
even in the absence of a formal state of war the rules regulating the mutual 
relations of belligerents are applicable to states immediately involved in 

43 See J. L. Kunz ("The Geneva Conventions of August iz, 1949," Law and Politics in The 
World Community, pp. 304-6), who asserts that since a state of war may not be recognized by 
any party to a conflict "such a conflict would, under the letter of Article z, not be included." 
This, for the reason that Article z speaks only of armed conflicts not recognized as war by one 
party to the conflict. In this connection, it may be of interest to note that Article z, paragraph 
11 of the "Draft Code of Offences Against the Peace and Security of Mankind," prepared by the 
United Nations International Law Commission at the request of the Genera^ Assembly, refers 
to "acts in violation of the laws and customs of war." In the explanatory comment following 
this paragraph it is stated that the latter "applies to all cases of declared war or of any other 
armed conflict which may arise between two or more States, even, if the existence of a state of 
war is recognized by none of them." U. N. General Assembly, Official Records, 6th Sess., Supp. 
No. p (Doc. Ali8j8'), p. 13. In the essay quoted above Professor Kunz also criticizes Article 
z of the 1949 Geneva Conventions for failing to provide clearly for "large scale fighting in 
the course of an international military enforcement action, as now going on in Korea. For 
this is not an armed international conflict 'between two or more of the High Contracting 
Parties'." But this interpretation assumes that the armed forces in Korea were United Nations 
armed forces in the strict sense, and not the national forces of member states acting on behalf 
of the Organization. If the latter assumption is made, and it is submitted to be the more feasible 
one, then this particular difficulty does not arise. 

44 Hague Convention III (1907) Relative to the Opening of Hostilities obligates the contract- 
ing parties not to commence hostilities "without previous and explicit warning, in the form 
either of a reasoned declaration of war or of an ultimatum with conditional declaration of war." 
It is doubtful whether customary international law required a state to give "previous and 
explicit warning" before commencing hostilities. Be that as it may, the commencement of 
hostilities without previous warning or declaration nevertheless results in a state of war if 
this is the intention of the state commencing hostilities. Thus: "... States which deliber- 
ately order the commencement of hostilities without a previous declaration of war or a qualified 
ultimatum commit an international delinquency; but they are nevertheless engaged in war." 
Oppenheim-Lauterpacht, op. cit., p. Z99. The more difficult questions arise, however, as 
Professor Stone correctly points out, "where war is not openly intended by one or other parties, 
who insist rather on conducting their hostilities under some other name." op. cit., p. 31Z. 



24 



armed conflict, the practice of states in this respect is still characterized by 
a substantial measure of uncertainty. 45 



45 See generally on this problem, Fritz Grob, The Relativity of War and Peace (1949). With 
respect to Hague Conventions II (1899) and IV (1907) regulating the conduct of war on land 
Grob declares: "Whether or not military operations are accompanied by naval operations, 
whether they are geographically limited or not, whether they are conducted by large units 
or merely by minute detachments, whether they extend over a period of years or last a few 
minutes only, all this cannot possibly make any difference for the application of the above 
rules of law on war." (p. xi7). Though this statement is probably correct it is doubtful 
whether the application of these conventions on land warfare to all international armed con- 
flicts can be deduced — as the author contends — from the intent and purpose of those drafting 
the conventions. However, it is true that despite the fact that these conventions refer to "war," 
the recent practice of states has been to apply them to all international armed conflicts, and it 
is this practice rather than the strict wording of the conventions in question that may be re- 
garded as decisive in determining their present application to armed conflicts ("military opera- 
tions") generally. On the other hand, P. Guggenheim (Traite de Droit International Public 
(1954), Vol. II, p. 311) observes that while those rules having a military and humanitarian 
character are made increasingly applicable to all international armed conflicts, rules regulating 
the economic domain of war remain limited in their operation to war in the formal sense. 
Thus in hostilities at sea it is doubtful that the right to seize and, under appropriate circum- 
stances, to destroy enemy private property may be extended at present to situations other 
than those characterized as war in the formal sense. (See pp. iox-3.) Indeed, instances of 
"undeclared hostilities" have been confined, by and large, to operations on land, and for this 
reason alone it is difficult to estimate the degree to which the rules regulating the mutual 
behavior of belligerents may be considered applicable to naval hostilities where the parties 
involved deny any intent to wage war. No doubt one reason for confining "undeclared hos- 
tilities" to operations on land is the desire to avoid raising problems concerning the position 
of third states or the nationals of third states. In naval hostilities it is seldom possible to 
avoid such problems. — Finally, distinguish clearly between the operation of the rules governing 
the mutual behavior of the combatants and the rules governing the mutual behavior of com- 
batants and non-participating states. The latter rules — the law of neutrality — are clearly 
dependent for their operation upon recognition of a state of war, though such recognition 
may be effected either by the combatants or by third states acting independently of the parties 
directly involved in hostilities (see pp. i99~ioi). 



25 



II. THE SOURCES AND BINDING FORCE OF THE 
LAW OF NAVAL WARFARE 

A. THE SOURCES OF THE LAW OF NAVAL WARFARE 

The great dividing line in the historical development of the law of naval 
warfare must be drawn at the outbreak of the first World War in 1914, for 
what is generally referred to as the "traditional law" is substantially the 
law as it appeared at this date. In the main, the traditional law of naval 
warfare is customary in character, developing out of eighteenth and — par- 
ticularly — nineteenth century practices. The various attempts to codify 
this customary law have never enjoyed the same degree of success that have 
attended similar efforts with respect to the codification of land warfare. 
There is no convention dealing with the regulation of naval hostilities that 
compares in scope and importance to the Regulations attached to Hague 
Convention IV (1907), Respecting the Laws and Customs of War on Land. 
The Hague Conventions of 1899 and 1907 which dealt specifically with the 
conduct of naval warfare are few in number and, with the exception of 
XIII (1907) concerning the Rights and Duties of Neutral States in Mari- 
time War, of relatively minor significance. 1 

Historically, the most important, and certainly the most controversial, 
disputes arising in the course of naval hostilities related to the extent and 
character of the right of belligerents to interfere on the high seas with 
private neutral trade. In the Declaration of London of 1909 the attempt 
was made to produce a generally acceptable codification of nineteenth cen- 
tury practices in this area of the law. However, the Declaration was never 
ratified by any of the signatory states; and despite the occasional claims of 
belligerents and neutral states during the first World War that the Declara- 
tion of London set forth the valid law regulating belligerent behavior at 
sea, it was not binding upon the naval belligerents in either World War. 2 

1 The Hague Conventions of 1907 relating to the conduct of naval warfare are: VI Status of 
Enemy Merchant Ships At the Outbreak of Hostilities; VII Conversion of Merchant Ships in 
Time of War; VIII Laying of Automatic Contact Mines; IX Bombardment by Naval Forces 
in Time of War; X Adaptation to Naval War of the Principles of the Geneva Convention; 
XI Certain Restrictions with Regard to the Rights of Capture in Naval War; and XIII Con- 
cerning the Rights and Duties of Neutral States in Maritime War. The United States ratified 
Conventions VIII, IX, X and XL Convention XIII was adhered to by the United States subject 
to certain reservations (see pp. 2.18 ff.). — During the nineteenth century the most important 
Convention concluded for the regulation of maritime warfare was the Declaration of Paris 
(1856). On the present status of the rules making up the Declaration of Paris, see pp. 99-101. 

2 For further remarks dealing generally with the Declaration of London, see pp. 187-9. 

26 



In the period of over four decades that has elapsed since the outbreak of 
the first World War there has been only one international instrument con- 
cluded for the regulation of naval hostilities that has received general ad- 
herence, and that instrument is the London Protocol of 1936 requiring sub- 
marines to conform in their actions against merchant vessels to the rules of 
international law to which surface vessels are subject. 3 To the extent, 
then, that the traditional law has been changed, such change has come 
principally through the practices of two World Wars. 4 

In recent years attention has been increasingly called to the uncertainty 
that characterizes a substantial portion of this traditional law of naval war- 
fare. The principal source of this uncertainty undoubtedly stems from the 
practices of the two World Wars. Although exaggerated accounts of the 
lawless behavior of the major naval belligerents frequently have been given 
there is no denying the fact that both wars — and particularly the second 
World War — witnessed the widespread violation of the traditional law. 
In the period following World War I it seemed plausible to contend that 
the circumstances of this conflict were exceptional (which, indeed, they 
were as judged by the circumstances of earlier wars), and that the effects of 
the war upon the traditional law had to be considered in the light of these 
exceptional circumstances. In general, this attitude led to the result that 
the traditional law — the law in force at the outbreak of World War I — was 
still considered, on the whole, to remain unimpaired. 

Thus H. A. Smith has observed that: 

After the armistice of 191 8 opinion in the Allied countries 
tended to regard the experience of the war as something both de- 
plorable and exceptional. It was hoped that the authority of the 
old rules could be restored and this view found expression in the 
unratified treaty drawn up at the Washington Conference of 192.2., 
which declared in effect that submarines must obey the same rules 
as surface ships. Almost all the writers of textbooks assumed 
that the rules of 1914 were still in force, and that the departures 
from these rules could be attributed to temporary causes not likely 
to be repeated. The official manuals issued in many countries for 
the instruction of naval officers all assumed the same point of view. 6 

The general reaction that has followed in the wake of the second World 
War, a war that served largely to confirm and to carry still further the prac- 

3 For the text and commentary upon the present status of the Protocol, see pp. 63-70. It may 
be noted that the Protocol was very largely a restatement, in conventional form, of pre-existing 
rules of customary law applicable to the operation of surface vessels. 

4 We are neglecting for the present the possible changes effected in the rules governing neutral- 
belligerent relations that result from obligations states may assume by virtue of membership 
in collective security organizations (see pp. 171-80). — A fairly detailed account of the historical 
development of the law of naval warfare up to World War II is given by Raoul Genet, Droit 
Maritime Pour le Temps de Guerre ([1936—38]), Vol. I, pp. 57-91. 

5 H. A. Smith, The Law and Custom of the Sea (znd. ed., 1950), p. 7Z. 

27 



tices initiated a quarter of a century earlier, has been quite different. The 
argument that the circumstances of this second conflict were exceptional 
appears, for obvious reasons, far less plausible and has been resorted to only 
infrequently. If anything, there now seems to be a widespread — though 
by no means unanimous — conviction that the experience of World War II 
must be considered as the probable standard for the future conduct of war 
at sea rather than an exceptional event of the past whose recurrence is un- 
likely. 6 Occasionally, this more recent reaction has taken the form of ex- 
pressing the belief that in modern war much of the traditional law is simply 
inapplicable given the far-reaching transformation of the nineteenth cen- 
tury environment in which this law developed and from which it derived 
its meaning and significance. From this latter point of view it is insuffi- 
cient to concentrate attention only upon the actual practices of the two 
World Wars. In addition, an inquiry must be made into the social, politi- 
cal and technological developments that have led to these recent practices. 
The experience of the two World Wars is held — according to this view — to 
indicate not only the relative ineffectiveness of many of the traditional 
rules. Even more important is the allegation that the traditional law no 
longer bears a meaningful relationship to the contemporary — and, it is 
assumed, the future — environment. Hence, it is this ever widening gap, 
this growing tension, between the contemporary social, political and tech- 
nological environment and the environment presupposed by the traditional 
law that will presumably determine the inapplicability of this law in future 
hostilities at sea. 7 
To a limited degree, the difficulties encountered in the endeavor to assess 



6 Among recent expressions to this effect, Julius Stone, op. cit., pp. 4021-13, 508-10, 599-607; 
H. A. Smith, The Crisis in the Law of Nations (1947), pp. 33—66; H. Lauterpacht, "The Problem 
of the Revision of The Law of War," B. Y. I. L., 2-9(i95z), pp. 373-7. It is an interesting gloss 
on the complexity of the attempt to evaluate the effects of recent practice on the traditional 
law that assertions as to the future ineffectiveness of this law are frequently made by writers — 
including those cited above — who nevertheless insist upon the continued validity of this law. 

7 Thus the argument cited above usually places emphasis upon the fact that the traditional 
law developed from, and consequently presupposed for its operation, a certain type of state 
and a certain type of war. The conception of the state was not necessarily democratic, but it 
was a state with limited powers. It presupposed economic liberalism, with a clear distinction 
to be drawn between the activities of the state and the activities of the private individual. 
The nineteenth century conception of war was that of a limited war, limited not only in terms 
of the number of states involved in any conflict, but also limited in terms of the fraction of 
each belligerent's population which either actively participated in or closely identified itself 
with the conduct of war. Finally, this conception of war presupposed limited war aims on the 
part of belligerents, which in turn facilitated the introduction of effective restraints upon the 
methods by which these aims might be pursued. Perhaps the decisive factor in conditioning 
the development of the traditional law was the assumption that in any war a substantial num- 
ber of states would refrain from participating in hostilities, and that the interests of these 
non-participants would have to be respected (see pp. 181-4). The conditions under which the 
two World Wars were fought, it is contended, have either placed in serious question or have 
swept away entirely these nineteenth century conceptions. 

28 



the impact of the two World Wars upon the traditional law may be lessened 
once it is recognized that the continued validity of this law is dependent 
upon a minimum degree of effectiveness. In a legal system characterized 
by a low stage of procedural development — as is the international legal 
system — the prolonged and marked ineffectiveness of a once valid rule 
would appear to result in rendering this rule no longer binding. 8 In the 
case of customary rules — and they form the primary concern here — the 
requirement that continued validity must presuppose a minimum degree 
of effectiveness would seem almost compelling, for the creation of customary 
law depends upon a well-established practice of states that is accompanied 
by the general conviction that the practice in question is both obligatory 
and right. 9 The effectiveness of the practice which serves to create cus- 
tomary law forms an essential prerequisite. Conversely, the invalidation 
of a rule of customary law may be brought about by a sustained and effec- 
tive practice that is contrary to once-established custom, particularly a 
practice that has ceased to provoke either protest or reprisal on the part 
of interested states. Presumably, the same requirement of effectiveness 
may be considered applicable to general rules established by convention; 
rules that are neither obeyed nor applied by the parties to a convention 
over a substantial period of time may be considered as being no longer valid. 

The apparent ease with which the general relationship between the bind- 
ing quality of the rules of war and the effectiveness of these rules may be 
stated should not prove misleading, however. In practice, the difficulties 
occur when the descent is made from the general proposition to the concrete 
case, and the question is posed : has this rule of customary (or conventional) 
law ceased to be valid for the reason that over a denned period of time it 
has been ineffective in regulating belligerent behavior? Merely to formu- 
late the problem in this manner suggests the serious obstacles in the way 
of a practical and useful solution. 

There is, to begin with, no rule of positive international law indicating 
either the length of the period or the degree of ineffectiveness sufficient to 
invalidate established rules of custom (or convention), just as there is no 
rule determining the point at which established usage turns into custom. 
And although the development from usage to custom is a decisive one, 
since it is only after this development has occurred that we are entitled to 
speak of laws of warfare, it is frequently difficult to determine this point 
in time. Nor is the absence of precise criteria for the determination of 
these questions relieved by the presence of an international tribunal com- 
petent to render authoritative and binding judgments in doubtful cases. 
In the absence of international tribunals competent to render such decisions 
in a manner binding upon states, the latter themselves must so decide, and 

8 In this sense, the "procedural development" of a legal system refers to the process of effec- 
tive centralization of the judicial, executive and legislative functions. 

9 See, Law of Naval Warfare, Article 211 

29 



the evidence of such decisions will commonly be manifested in the instruc- 
tions many states issue to their naval forces, in the diplomatic correspond- 
ence carried on by states, in the prize codes states enact when engaged in 
hostilities, and in the decisions rendered by national prize courts. Yet 
these "decisions," insofar as they constitute an interpretation of the law 
of naval warfare, are not binding upon other states; the right of each 
state to interpret the law is not a right to decide this law in the sense that 
this interpretation is obligatory for other states. 10 

It is quite true that the absence of compulsory international tribunals 
affects the utility of conventional rules as well, since not infrequently the 
provisions of conventional rules are subject to widely varying interpreta- 
tions. 11 Nevertheless, in the case of customary rules this difficulty is 
normally magnified, since the degree of uncertainty as to the content of a 
customary rule is not only likely to be greater, but the very existence of the 
rule is in many instances the real subject of dispute. In the history of 
naval warfare controversies over the meaning or even the purported exist- 
ence of customary rules have never been absent, and this uncertainty has 
had as a consequence the furnishing of belligerents with a convenient pre- 
text for the taking of reprisals against allegedly unlawful behavior of an 
enemy. 

In short, the obvious consequences of the far-reaching decentralization 
characteristic of the international legal order are perhaps even more readily 
apparent in time of war than in time of peace, and the uncertainty produced 
by this condition is more clearly evident in the case of customary rules than 
in the case of conventional rules. Hence, even if it is generally admitted 
that a necessary relationship must exist between the validity and the 
effectiveness of the rules regulating the conduct of war at sea, the above 
considerations would appear to indicate that in practice a large number of 
these rules must continue to lead what might be termed a "shadowy 
existence." 

There is a further, and closely related, factor that contributes to the 
difficulty of rendeting a satisfactory evaluation of the impact of recent 
practices upon the traditional law. During both World Wars the major 

10 "The technical organizational insufficiency of international law may, and in fact does, 
make it difficult to determine whether a state acts in accordance with, or contrary to, inter- 
national law. ... It is generally recognized that the root of the unsatisfactory situ- 
ation in international law and relations is the absence of an authority generally competent 
to declare what the law is at any given time, how it applies to a given situation or dispute, 
and what the appropriate sanction may be. In the absence of such an authority, and failing 
agreement between the states at variance on these points, each state has a right to interpret 
the law, the right of auto-interpretation, as it might be called. This interpretation, however, 
is not a 'decision' and is neither final nor binding upon the other parties." Leo Gross, "States 
as Organs of International Law and the Problem of Auto-Interpretation," Law and Politics in 
the World Community, pp. 76-7. 

11 An example of such widely varying interpretations may be seen in the case of the provisions 
of Hague VIII (1907), dealing with the laying of automatic contact mines. See pp. 303-5. 

30 



naval belligerents deemed it necessary to conduct hostilities at sea largely 
upon the basis of measures whose legal justification — // the continued 
validity of the traditional law is assumed — could rest only upon the bel- 
ligerent right of reprisal. The declaration of operational (war) zone 
within which neutral shipping was subject to special hazards, the indis- 
criminate laying of mines, the resort to unrestricted aerial and submarine 
warfare, the substantial alteration of the traditional law governing block- 
ade and contraband — these and other measures were based for the most 
part upon the belligerent claim of reprisal. There is no need, at this point, 
to consider the nature and permissible extent of the belligerent right to 
resort to reprisals in maritime warfare, particularly when belligerent 
reprisals are found to operate principally against neutral shipping. 12 Nor 
is it necessary to examine in this connection the controversial question of 
ultimate responsibility for the initiation of the seemingly endless series of 
reprisals at sea. It is relevant to observe, however, that the resort to 
reprisals in both World Wars provided — in certain instances at least — a 
convenient method for evading the restrictions imposed by the traditional 
law, and, it has been contended, for effecting changes in this law that ordi- 
narily would have been left to the explicit agreement of the interested 
states. 13 

At the same time, the care with which belligerents have frequently 
sought to base departures from the traditional law upon the right of re- 
prisal against allegedly unlawful actions of an enemy 14 has had the result 
of denying the possibility of rendering an unambiguous interpretation of the 
measures which formed the content of these reprisals. Normally, the 
resort to reprisals may be interpreted as an affirmation of the continued 
validity of the law the violation of which forms the condition of the re- 
prisal. A reprisal between belligerents is an act, otherwise unlawful, that 
is exceptionally permitted to a belligerent as a reaction against a previous 
violation of law by an enemy. 15 Despite the evident desire of belligerents 

12 See pp. I87-90, 2.53—8. 

13 "In the sphere of maritime law the operation of reprisals in both World Wars has, in 
practice, replaced most of the traditional rules. In a sense, reprisals have often fulfilled the 
function which would normally have been left to the agreement between States, namely, that 
of the adaptation of the law to the changed conditions of modern warfare. For this reason it 
is not always profitable to inquire whose original illegality opened wide the flood gates of 
retaliation. It is sufficient to note that the torrent swept away with devastating thoroughness 
many of the elaborate, though often controversial, rules." H. Lauterpacht, "The Law of 
Nations and the Punishment of War Crimes," B. Y. I. L., 21 (1944), p. 76. See also the pene- 
trating comments of Julius Stone (pp. tit., pp. 355-66, 366-7) on the "legislative function" 
of reprisals in naval warfare. 

14 A care which Nazi Germany did not abandon even at the height of her wartime victories. 
Thus the German "blockade" announcement of August 18, 1940, sought to justify the measures 
to be taken against enemy and neutral vessels upon the right of retaliation. For text of the 
German "blockade" announcement, see U. S. Naval War College, International Law Documents, 
1940, pp. 46-50. Also, see pp. 296-305. 

15 On reprisals generally, see pp. 150-3. 

31 



in recent maritime warfare to use reprisals as a pretext for evading the tradi- 
tional law, there is nevertheless considerable merit in the argument that 
the very care with which such departures were usually justified as reprisals 
indicates the continued existence of a conviction that behavior in conform- 
ity with this law is normally both obligatory and right. It has already 
been observed that this conviction is a necessary element — along with the 
criterion of effectiveness — in the creation of customary law. It would ap- 
pear equally true that the retention of this conviction must be taken into 
consideration when attempting to determine the continued validity of the 
traditional law. This consideration, therefore, must form a qualifica- 
tion upon an uncritical use of the principle of effectiveness. 

There are, of course, limits to the significance that reasonably can be 
given to the claim of reprisals. This is especially so when acts resorted to 
as reprisals threaten to become part of the permanent structure of naval 
hostilities rather than a temporary and limited exception. Still, the fact 
that belligerents have felt the necessity to use the plea of reprisals when 
departing from the traditional law warrants the most careful inquiry before 
a rule of maritime warfare can be considered, with assurance, as no longer 
valid. 16 

B. THE BINDING FORCE OF THE LAW OF NAVAL WARFARE 

As a general rule, the binding force of conventional rules of war is limited 
to the contracting parties, and then only to the extent specified by the 
terms of the convention in question and by the conditions accompanying 
ratification or adherence. 17 On the other hand, the customary rules of the 
law of war are binding upon all states and under all circumstances. The 

16 The remarks made in the text above on the relationship between the validity and the 
effectiveness of the laws of war form a problem upon which succeeding chapters provide almost 
a continuous commentary. Indeed, it is surely no exaggeration to state that the effect of recent 
practice upon the traditional law constitutes the critical -problem in any contemporary inquiry 
into the present status of the rules of naval warfare. Unfortunately, however, it is next to 
impossible to present a clear and satisfactory answer to this problem, largely for those reasons 
that have already been indicated in the preceding pages of this chapter. 

17 See Law of Naval Warfare, Article 2.13b and notes thereto. All of the Hague Conventions 
of 1907 contain a provision known as the "general participation" clause, to the effect that the 
convention in question applies only to the contracting parties, and then only if all the belliger- 
ents are parties to the convention. In strict law, therefore, these conventions are not binding 
unless the requirements of the general participation clause are met. During World Wars I and 
II some of these conventions were nevertheless applied, despite the fact that not all the bellig- 
erents were parties to the convention in question. In practice, states have looked more to 
the element of reciprocity than to the formal standards of this clause. In addition, some of 
the 1907 Hague Conventions have come to be considered as a codification of customary law, 
hence binding upon all belligerents irrespective of ratification or adherence — e. g., Hague 
IV, Respecting The Laws and Customs of War on Land. More recently, the contracting 
parties to multilateral conventions regulating the conduct of war have avoided the "general 
participation" clause. The common Article x paragraph 3 of the 1949 Geneva Conventions 

32 



statement is frequently made that reprisals form one clear exception to the 
binding force of customary rules. 18 However, this manner of formulation 
may easily prove misleading. The act of taking reprisals does not repre- 
sent a restriction to the binding force of customary law. On the contrary, 
this law remains fully binding, and the act of taking reprisals is itself a 
clear indication of the continued binding force of the customary law the 
violation of which forms the condition for the act of reprisal. Reprisals 
do not represent — at least not in theory l9 — an abandonment of the custom- 
ary law (or the conventional law for that matter), but rather the enforce- 
ment of that law; at the very least, reprisals represent an act of "self help" 
permitted against a previous violation of law. 20 

Apart from reprisals, the principle of military necessity has generally 
been considered as the most important qualification to the binding force 
of both the customary and conventional law of war. Indeed, the extent 
to which this principle may be held to restrict the operation of the rules 
of war has provided one of the most disputed issues among writers. 21 
The core of the controversy has centered about the doctrine that interprets 
military necessity as serving to justify departure from any of the established 
rules of war when the observance of these rules either would endanger the 

on the Protection of Victims of War provides that the contracting Parties to the conventions — 
in time of conflict — remain bound by the conventions, as among themselves, even though 
one of the belligerents is not so bound. Thus: "Although one of the Powers in conflict may 
not be a party to the present Convention, the Powers who are Parties thereto shall remain 
bound by it in their mutual relations. They shall furthermore be bound by the Convention 
in relation to the said Power, if the latter accepts and applies the provisions thereof." 

18 Thus Oppenheim-Lauterpacht (pp. cit,. p. 131): "As soon as usages of warfare have by 
custom or treaty evolved into laws of war, they are binding upon belligerents under all circum- 
stances and conditions, except in the case of reprisals as retaliation against a belligerent for 
illegitimate acts of warfare by the members of his armed forces or his other subjects." 

19 A different question, of course, concerns the practical effect of reprisals, particularly as 
operative in hostilities at sea. 

20 Law of Naval Warfare, Article 213a. 

21 It should be made clear that in this context the principle of military necessity is considered 
as a rule of positive law and not as an ideal (or policy) influential in the development of the 
law of war. However, as a rule of positive law the principle of military necessity has been 
used in two quite different senses, which should be distinguished clearly. In the first sense, 
military necessity is held to constitute a restriction — whether explicit or implicit — upon the 
operation of the positive rules of custom and convention. Here military necessity refers to 
those exceptional conditions or circumstances in which behavior otherwise prescribed by estab- 
lished rules of law may be disregarded. In the second sense, the principle of military neces- 
sity forms a standard (along with the principle of humanity) for determining the legality 
of a weapon or method of warfare not already expressly regulated by a rule of custom or con- 
vention. In the former sense, then, military necessity relates to restrictions upon the operation 
of existing rules; in the latter sense military necessity provides a standard for judging the legality 
of weapons and methods not already expressly regulated. It is the first meaning of the principle 
that is considered here, whereas the latter meaning is considered when dealing with the general 
principles governing the weapons and methods of warfare (see pp. 45-50). Article zioa of the 
Law of Naval Warfare includes both meanings within its definition of military necessity. 

33 



success of a military operation or would threaten the survival (self-preser- 
vation) of a military unit. 22 In either circumstance, the principle of mili- 
tary necessity is considered to be operative and to free belligerents from 
behaving in accordance with otherwise valid law. 23 

As against this interpretation of military necessity it has been argued, 
principally by English and American writers, that military necessity — 
more precisely, that the circumstances held to constitute a condition of 
military necessity — can justify a departure from behavior normally de- 
manded by the law of war only when conventional or customary rules 
expressly provide for the exceptional operation of military necessity. 24 
According to this latter interpretation — which is believed to be correct — 
military necessity must be interpreted "to denote those exceptional cir- 
cumstances of practical necessity contemplated by express reservations to 
be found in several Articles of the Hague Regulations and other Conven- 
tions in regard to acts otherwise prohibited. The general principle is that 
conventional and customary rules of warfare are always binding upon 
belligerents and cannot be disregarded even in case of military necessity." 25 

22 In its classic form this doctrine is usually identified with the German proverb — kriegs- 
raison geht vor hriegsmanier — necessity in war overrules the manner of warfare. The proverb is 
somewhat misleading since it has not been used primarily to refer to the manner or usages of 
war (hriegsmanier) — which would raise no serious question — but rather to the established law 
of war (hreigsrechi) — which does raise a serious question. This is clear from the formulation of 
kriegsraison given by Leuder (quoted in The Collected Papers of John Westlake on Public Inter- 
national Law (1914), pp. 144-5) to tne following effect: "Kriegsraison embraces those cases in 
which, by way of exception, the law of war ought to be left without observance .... When 
. . . the circumstances are such that the attainment of the object of the war and the escape 
from extreme danger would be hindered by observing the limitations imposed by the laws of 
war, and can only be accomplished by breaking through these limitations, the latter is what 
ought to happen." 

23 Strictly speaking, this particular interpretation of military necessity does not deny the 
general validity of the customary and conventional law of war. Hence, military necessity is 
not used to deny the binding force (validity), in the formal sense, of these rules, though this 
may well be the practical effect of the doctrine. It is asserted, however, that this principle 
must be held to constitute an implied restriction to, and therefore can in the appropriate cir- 
cumstances override, any otherwise valid rule of warfare. 

24 Examples of conventional rules providing for the exceptional operation of military necessity 
are: in land warfare, Article z^g of the Regulations attached to Hague Convention IV (1907) 
forbidding belligerents to "destroy or seize the enemy's property, unless such destruction or 
seizure be imperatively demanded by the necessities of war"; in naval warfare, Article 16 of 
Hague Convention X (1907) requiring that "after every engagement the two belligerents, so 
far as military interests permit, shall take steps to look for the shipwrecked, sick and wounded, 
and to protect them, as well as the dead, against pillage and ill treatment" (Article 18 of the 
1949 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Ship- 
wrecked Members of Armed Forces at Sea substantially repeats this earlier provision, save 
that it uses the words "take all possible measures to search for"). 

25 N. C. H. Dunbar, "Military Necessity in War Crimes Trials," B. Y. I. L., 19 (1951), p. 444. 
To the same effect, W. G. Downey, Jr. ("The Law of War and Military Necessity," A. J. I.L., 
47 C I 953)> P- 2.62.): "... military necessity cannot justify an act by a military commander 
which disregards a positive rule of law or which goes beyond the express limitations of a 

34 



Hence, the principle of military necessity cannot be considered as superior 
to, and thereby restricting the operation of, all other rules of warfare, 
whether customary or conventional. On the contrary, it is the principle 
of military necessity that may be restricted by the positive law of war, and 
occasionally is so restricted. 26 Not everything necessary to the purpose of 
war is allowed by the law of war. 27 

qualified rule of law. Such acts always constitute a violation of the law of war." Oppenheim- 
Lauterpacht (op. cit., p. 2.31): "These conventions and customary rules cannot be overruled 
by necessity, unless they are framed in such a way as not to apply to a case of necessity in self- 
preservation." Also Erik Castren (The Present Law of War and Neutrality, (1954), p. 66): "This 
view (i. e., doctrine of kriegsraison) of the elasticity of the laws of war must be absolutely 
rejected as it cannot be legally justified and as its practical consequences are most dangerous." 
Section 2.zoa of the Law of Naval Warfare speaks of the operation of military necessity when 
"not otherwise prohibited by the laws of war." (And see notes to this provision for further 
elaboration.) 

26 It has been pointed out by many writers that one reason why military necessity may not 
be invoked except when expressly provided for by rules of warfare is that in establishing these 
rules military necessity has already been taken into consideration. This is held to be particularly 
true of conventional rules. (And the preamble to Hague Convention IV (1907), furnishes some 
support for this opinion in declaring that: "according to the views of the High Contracting 
Parties, these provisions, the wording of which has been inspired by the desire to diminish 
the evils of war, as far as military requirements permit. . . . ") While this contention is 
justified in large measure, it is important to recognize, at the same time, that certain rules 
clearly do not allow for the operation of military necessity. Thus the prohibitions against 
killing prisoners of war — or helpless survivors at sea — are absolute, and circumstances of 
military necessity do not justify any departures from these prohibitions. To a certain extent, 
therefore, it is a fiction to maintain that the law of war has in each instance already taken into 
account the requirements of military necessity, since in some instances action is prohibited 
even though circumstances constituting military necessity may otherwise require the perform- 
ance of the prohibited action. Article 1 common to the four 1949 Geneva Conventions states 
that : ' 'The High Contracting Parties undertake to respect and to ensure respect for the present 
Convention in all circumstances." [italics added] Finally, for an earlier — and emphatic — 
statement in the German literature to the effect that military necessity can be invoked only 
in the case of norms specifically providing for the exceptional operation of military necessity, 
see J. L. Kunz, Kriegsrecht und Neutralitdtsrecht (1935), pp. 2.6-8. 

27 With respect to this more restrictive interpretation of military necessity it has been recently 
stated that: "This reasoning . . . would forbid departure from the rules of war-law even in 
face of the direst needs of survival. Yet it remains ground common to British, American, French, 
Italian and other publicists, as well as German, that a State is privileged, in title of self-preser- 
vation, to violate its ordinary duties under international law, even towards States with which 
it is at peace; and may also itself determine when its self-preservation is involved. Neither 
practice nor the literature explain satisfactorily how the privilege based on self-preservation 
in times of peace can be denied to States at war." Stone, op. cit., pp. 35Z-3. Although the 
principle of military necessity more commonly refers "to the plight in which armed forces 
may find themselves under stress of active warfare" and not to "a danger or emergency of such 
proportions as to threaten immediately the vital interests, and, perhaps, the very existence of 
the state itself" (Dunbar, op. cit., p. 443), it is nevertheless true that departures from the law 
of war can be — and frequently have been — justified in terms of the states' "fundamental right" 
of self-preservation. To this extent Professor Stone is certainly correct in observing a contra- 
diction between the latitude ascribed by writers to the states' "right of self-preservation" in 
time of peace and a denial of the same right in time of war. In fact, however, the criticism 

399334—57 4 35 



It is this latter, and more restrictive, interpretation of military necessity 
that has recently received clear judicial endorsement. In the war crimes 
trials following the second World War the chief preoccupation of tribunals 
called upon to interpret the principle of military necessity was to determine 
when circumstances of military necessity could be considered as serving to 
justify departures from conduct normally prescribed by the rules of warfare. 
Although the judgments of tribunals were by no means identical on a num- 
ber of points, there nevertheless was a remarkable uniformity of judicial 
opinion, which — taken as a whole — clearly appears to support the narrow 
interpretation of military necessity. The following is a brief summary of 
these judgments. 

(i) Military necessity may serve as a defense plea against charges of 
committing acts normally forbidden by the law of war only when the rule 
in question can be interpreted as permitting such exceptional departure in 
circumstances constituting a condition of military necessity. Thus in the 
Hostages Trial the tribunal stated that the prohibitions contained in the 
Hague Regulations "are superior to military necessities of the most urgent 
nature except where the Regulations themselves specifically provide the 
contrary. . . ." 28 In the case of conventional law the rule in question 
must -provide expressly for military necessity. In particular, where the pro- 
hibition contained in a rule is absolute in character, military necessity 
cannot be used as a defense. Thus circumstances of military necessity have 
not been considered as justifying the killing of prisoners of war. 29 

Professor Stone properly raises points to the necessity of a "frank review of the meaning of 
the self-preservation" doctrine as it applies in time of peace. The right of self-preservation 
accorded to a state in time of peace must therefore be limited to a right of action against meas- 
ures which are prima facie unlawful. Neither "necessity in self-preservation" in time of peace 
nor "military necessity" in time of war can be held to justify a departure from established law, 
if such departure is taken in response to acts admittedly lawful in character. 

28 (Trial of Wilhelm List and Others), Law Reports. . ., 8 (1949), p. 69. Elsewhere the Tribunal 
went so far as to state that "the rules of International Law must be followed even if it results 
in the loss of a battle or even a war. Expediency or necessity cannot warrant their violation" 
(p. 67). In the Krupp Trial the tribunal declared that: "It is an essence of war that one or the 
other side must lose and the experienced generals and statesmen knew this when they drafted 
the rules and customs of land warfare. In short these rules and customs of warfare are designed 
specifically for all phases of war." (Trial of Alfred Felix Alwyn Krupp von Bohlen und Halbacb 
and Eleven Others'), Law Reports. . ., 10 (1949), p. 139. Also see the Trial of Erhard Milch, 
Law Reports. . ., 7 (1948), pp. 44, 64-5. 

In his excellent survey of these and other cases, Dunbar (op. cit., p. 451) states that: "It seems 
likely that courts will be disinclined to enlarge the doctrine of military necessity beyond that 
countenanced by express reservations appearing in the Hague and Geneva Conventions. The 
general principle is that belligerents must always respect and observe customary and conven- 
tional rules of warfare." 

29 In the Trial of Gunther Thiele and Georg Steinert (Law Reports . . ., 3 (1948), pp. 56-9) a 
United States Military Commission tried and sentenced the accused to death by hanging for 
unlawfully ordering and killing prisoners of war. At the time the offense was committed the 
accused were "part of a German unit which was closely surrounded by United States troops, 
from which the Germans were hiding. 

36 



(z) In the case of rules allowing for the exceptional operation of 
military necessity, departure from normally prescribed behavior is justified 
for reasons of self-preservation or for insuring the success of a military 
operation. In addition, there must be an element of urgency involved that 
allowed — or seemed to allow — no alternative course of action. However, 
it does not appear that it is essential to establish that the circumstances 
constituting a condition of military necessity were objectively present in a 
given situation. It is sufficient only to establish that the individual putting 
forth the plea of military necessity as a defense honestly believed at the 
time that such circumstances were present. 30 

30 This last point was given special emphasis in the Hostages Trial where one of the accused 
had been charged with the wanton destruction of property while retreating before Russian 
forces. The accused maintained that he acted only under circumstances he believed to consti- 
tute a condition of military necessity, and that his behavior was justified by Article x^g of 
Hague IV (1907). In its judgment, the Tribunal stated: "There is evidence in the record 
that there was no military necessity for this destruction and devastation. An examination of 
the facts in retrospect can well sustain this conclusion. But we are obliged to judge the situa- 
tion as it appeared to the defendant at the time. If the facts were such as would justify the 
action by the exercise of judgment, after giving consideration to all the factors and existing 
possibilities, even though the conclusion reached may have been faulty, it cannot be said to 
be criminal." (Trial of Wilhelm List ancl Others) Law Reports. . ., 8 (1949), pp. 68-9. A 
substantially similar conclusion was reached by the Tribunal in the German High Command 
Trial (Trials of Wilhelm Von Leeb and Thirteen Others) Law Reports . . ., 12. (1949), pp. 93-4. 



37 



III. THE NAVAL FORCES OF BELLIGERENTS 

A. THE NAVAL FORCES OF BELLIGERENTS ACCORDING TO 

THE TRADITIONAL LAW 

In warfare at sea it is important to be able to identify clearly the naval 
forces of belligerents. The reason for this is that many of the rules regu- 
lating inter-belligerent and neutral-belligerent relations are dependent for 
their operation upon the possibility of distinguishing between combatants 
and non-combatants. Only the naval forces of a belligerent are permitted 
to conduct offensive operations against an enemy. In addition, the treat- 
ment accorded to a belligerent vessel depends, in the first place, upon 
whether or not the vessel forms a part of the belligerent's naval forces. 
Whereas the naval vessels of a belligerent are subject to attack and destruc- 
tion on sight, enemy merchant vessels are normally exempt from such treat- 
ment. Whereas title to a vessel in the military service of an enemy immedi- 
ately vests in the government of the captor by virtue of the fact of capture, 
title to an enemy merchant vessel normally depends upon adjudication by a 
prize court. So also may the treatment of personnel taken from enemy ves- 
sels differ, depending upon the status of the vessel. Finally, the traditional 
rules governing neutral-belligerent relations in naval war presuppose 
throughout the possibility of distinguishing between the naval forces of 
belligerent and belligerent merchant vessels. 1 

Although the naval forces of states comprise vessels, aircraft and per- 
sonnel, the warship remains the main combatant unit in warfare at sea and 
therefore forms the principal object of inquiry. 2 While there is no multi- 
lateral convention that directly defines a warship, Hague Convention VII 
(1907), by enumerating the conditions that must be satisfied in order to con- 
vert a merchant vessel into a warship, indirectly defined the latter. In this 
Convention a vessel in order to qualify as a warship must be placed under 
the direct authority, immediate control, and the responsibility of the power 
whose flag it flies; it must bear the external marks distinguishing the war- 
ships of the state under whose authority it acts; the commander of the ves- 

1 See pp. 56 ff. 

2 To this extent, a discussion of lawful combatants in naval warfare differs from a similar discus- 
sion in relation to land warfare where attention is directed primarily toward determining the sta- 
tus of personnel. As a general rule, in naval warfare the combatant status of the vessel is sufficient 
to determine the combatant status of the personnel on board the vessel. This is equally true 
for aircraft, the combatant status of the vessel being extended to aircraft carried on board. 

38 



sel must be in the service of the state, duly commissioned, and listed among 
the officers of the fighting fleet; the crew must be subject to naval discipline; 
and the vessel must observe in its operation the laws and customs of war. 
In principle, these criteria may still be regarded as furnishing the distinctive 
features of warships. 3 

Included among the commissioned naval forces of states are many vessels 
that are neither heavily armed nor capable, in fact, of carrying out offensive 
operations against an enemy. The suggestion has occasionally been put 
forward that such vessels ought not to be subject to the same treatment 
meted out to heavily armed warships. 4 However, the practice of states 
has not been to consider these naval vessels as possessing a status essentially 
different from the status of naval vessels whose primary purpose is to con- 
duct offensive operations. 5 It is the fact of being duly commissioned as a 
naval vessel, hence being legally competent to exercise belligerent rights at 
sea, that is the decisive consideration, and not the fact that many naval 
vessels may be only lightly armed or perhaps altogether without offensive 
armament. 6 A consequence of this incorporation into the naval forces of a 
belligerent, and the attending legal competence to exercise belligerent 
rights, is the liability to attack and destruction on sight. 

Thus commissioned naval vessels, commanded by commissioned naval 
officers and flying the naval ensign, which serve either to transport the 
armed forces of belligerents or to perform various auxiliary services to 
fighting vessels (i. e., supply tenders, colliers, etc.) are subject, in principle, 
to the same treatment as naval vessels whose purpose is to conduct offensive 
operations at sea. To this extent, at least, it would appear misleading to 
distinguish between the "combatant" and "non-combatant" naval forces 

3 See Law of Naval Warfare, Section 500c. Among writers the following statement may be 
considered to be representative: "The essential features of a warship are that her commander 
holds a commission from his state, the ship flies the flag of the navy which in many countries 
is different from that of the merchant marine, and the officers and crew are under naval dis- 
cipline." Higgins and Colombos, The International Law of the Sea, (znd ed. rev. by C. John 
Colombos, 195 1), p. 350. 

4 C. C. Hyde, for example, states that "the public belligerent ship which is impotent to 
fight through lack of armament should not be dealt with as though it were a dreadnought. 
Hence there appears to be need of a fresh classification differentiating the fighting from the non- 
fighting public vessels of a belligerent, in case at least it be acknowledged that both are not to 
be treated alike by an enemy." International Law, Chiefly As Interpreted and Applied By The 
United States (znd. rev. ed., 1945), Vol. 3, p. 192.0. 

5 A similar position is taken by Professor Guggenheim (pp. cit., p. 32.6), who points out that 
as long as a vessel makes up a part of the naval forces of a belligerent, in the sense described 
in the text above, it is immaterial whether or not the vessel is armed in the regular manner of 
warships. 

6 Exception must be made, of course, for naval hospital vessels and cartel vessels, which bear 
a special status. Although included within the naval forces of belligerents, neither of these 
categories of vessels is legally capable of exercising belligerent rights at sea, and the unlawful 
exercise of belligerent rights serves to deprive hospital and cartel vessels of the special protection 
otherwise guaranteed to them. See pp. 96-8, iz6-8, 

39 



of belligerents. 7 Whatever differentiation in treatment is to be given to 
these two categories of naval vessels must instead be attributed to the rule 
obligating belligerents to apply only that degree of force required for the 
submission of the enemy. 8 

A special problem concerns the conversion of merchant vessels into 
warships. In both World Wars the naval belligerents freely resorted to 
the practice of converting merchant vessels into warships. So long as 
such conversion was effected within the jurisdiction of the belligerent 
resorting to conversion (or within the jurisdiction of Allies) and the 
converted vessel fulfilled the requirements stipulated in Hague Convention 
VII (1907), requirements which have already been summarized, there was 
no serious disposition to challenge the right of converting merchant vessels 
into warships. But neither Hague Convention VII (1907) nor subsequent 
practice succeeded in settling the question as to whether merchant vessels 
may be converted on the high seas. 9 

Although the legitimacy of converting merchant vessels into warships 
must be considered as well established, it has been contended that to permit 
conversion revives, in fact if not in law, the centuries old practice of priva- 
teering, a practice formally abolished by the Declaration of Paris of 1856. 
There is much to be said for this view. 10 It is quite true that the control 

7 Frequently, however, this distinction results from the fact that belligerents employ vessels 
in order to perform auxiliary services to combatant naval units though without formally 
incorporating such vessels into the naval forces. Vessels so serving belligerent forces may 
retain their private ownership and merely serve under charter to the belligerents for the pur- 
poses of the war. On the other hand, they may be owned by the government. In any event, 
unless commissioned as naval vessels they are not competent to exercise belligerent rights at 
sea. Thus the term "fleet auxiliaries" must be used with caution, since it may refer to vessels 
formally incorporated into the naval forces of a belligerent, and therefore competent to exercise 
belligerent rights, and those not formally incorporated. Neither the fact that both categories 
of vessels perform essentially similar services nor the fact that both categories are subject to the 
same liabilities if encountered by an enemy (i. e., attack and destruction) should serve to obscure 
this distinction. 

8 See pp. 46-50. 

9 Conversion within neutral jurisdiction being clearly prohibited. In practice, however, 
the question as to whether merchant vessels may be converted on the high seas did not prove to 
be too significant a controversy in either World War. Far more important has been the dis- 
pute over the status of vessels that have not been openly converted, but that have been "de- 
fensively" armed and subjected to a considerable measure of state control (see pp. 58 ff.). A 
further unsettled point concerns the legality of reconversion as well as the place where recon- 
version may take place, if permitted. 

10 E. g., Stone asks whether Hague Convention VII (1907) was not "an abrogation pro tanto 
of the rule of the Declaration of Paris which abolished privateering. Analytically . . . Hague 
Convention No. 7 contains no such abrogation. Yet it seems idle to blink the fact that func- 
tionally the Convention sanctions the use of merchantmen to fill gaps in regular navies formerly 
filled by the privateers." op. cit., p. 576. These views echo the opinions of earlier writers. On 
the other hand, Oppenheim-Lauterpacht declares that: "The opinion . . . that by permitting 
the conversion of merchantmen into men-of-war privateering had been revived, is unfounded, 
for the rules of Convention VII in no way abrogated the rule of the Declaration of Paris that 
privateering is and remains abolished." op. cit., p. 165. 

40 



belligerents now exercise over converted merchant vessels, and the disap- 
pearance of the motive of personal gain, has served to remove some of the 
most undesirable features that were characteristic of privateering. Yet it 
seems equally true that widespread resort to conversion serves to fulfill in 
large measure the principal function formerly accomplished through the use 
of privateers. Through the conversion of merchant ships a weak naval 
power hopes to compensate for its weakness in much the same manner that 
weak naval powers in the past compensated for their weakness by the use 
of privateers. In view of the disparity that will usually exist between a 
regular warship and a converted merchant vessel, the principal use of the 
latter must be — and in practice has been — confined to forays against enemy 
merchant shipping. Rather than utilize his warships for the protection 
of merchant shipping, the belligerent against whom such converted mer- 
chant vessels operate will resort to the defensive arming of his merchant 
vessels. In this manner the widespread use by belligerents of converted 
merchant vessels has been one factor, in addition to the submarine and air- 
craft, that has served to lead to the present unsettled status of the distinction 
between combatants and non-combatants in naval warfare. 

B. THE PROBLEM TODAY 

The preceding considerations have dealt with the identifying character- 
istics of naval forces, characteristics which are well established by the cus- 
tomary practices of states. Vessels possessing these characteristics are 
competent to exercise belligerent rights at sea, are subject to attack and 
destruction at sight by the military forces of an enemy, and are obligated 
to observe certain restrictions when in neutral territorial waters and ports. 11 
Recent developments, however, have served to cast considerable doubt upon 
the adequacy of the characteristics established by the traditional law for 
identifying the naval forces of belligerents. The criticism is increasingly 
made that the traditional law, and the formal requirements laid down by 
this law, are no longer entirely appropriate given the circumstances under 
which the two World Wars were fought. More specifically, it has been 
held that the traditional law fails to include within the naval forces of 
belligerents many vessels which constitute at present an integral part of a 
belligerent's military effort at sea. 

This criticism undoubtedly warrants the most serious consideration. 
Despite the obvious importance of being able to identify clearly the naval 
forces of belligerents the task has never proven easy. The traditional 
law attempted to resolve some of the difficulties involved in making this 
identification by drawing a distinction between those vessels competent to 
exercise belligerent rights and those vessels not so competent but whose 
behavior might nevertheless result in liability to the same treatment as 
belligerent warships. Competence to exercise belligerent rights, as already 

11 See pp. 119-45 f° r a discussion of such restrictions. 

41 



noted, is vested by the traditional law only in those vessels that are formally 
incorporated into the naval forces of a belligerent, that are commanded 
by a commissioned naval officer and manned by a crew submitted to naval 
discipline, and that fly the naval ensign. On the other hand, any merchant 
vessel — including the merchant vessels of neutral states — could become 
liable to the same treatment as belligerent warships, such liability following 
from the performance of certain acts. Thus a merchant vessel actively 
resisting visit and search or performing certain acts of direct assistance to 
the military operations of a belligerent has always been considered as 
subjecting itself to attack and possible destruction. 12 Nevertheless, this 
liability of merchant vessels did not warrant their being considered as 
bearing the same legal status as the naval forces of belligerents. In par- 
ticular, the subjection of merchant vessels to treatment similar to that 
meted out to belligerent warships did not, for that reason, serve to confer 
upon such vessels the rights which belonged only to warships. 

The utility of this distinction admittedly has been substantially reduced 
today when belligerents either own and operate directly all vessels engaged 
in trade or submit the activities of privately owned vessels to far reaching 
controls. The traditional law necessarily assumed that the occasions in 
which privately owned and operated vessels would become liable to the 
same treatment as warships would be limited in number. Perhaps equally 
important was the assumption that this liability of merchant vessels would 
follow — when it did occur — as the result of acts freely undertaken by the 
owners of private vessels. These assumptions are valid only to a very 
limited extent at present, and it is with their gradual disappearance during 
the two World Wars that the principal difficulty involved in identifying 
the naval forces of belligerents is intimately related. The "defensive" 
arming of belligerent merchant vessels at the direction and expense of the 
state, the manning of defensive armament by naval gun crews, sailing under 
convoy of warships, and the incorporation of merchant vessels into the 
intelligence system of the belligerent, have become common practices. 

It may, of course, be argued that despite this ever increasing control 
exercised over merchant vessels, that despite this growing integration of 
merchant vessels with the military forces of a belligerent, the legal status 
of merchant vessels — whether publicly or privately owned — remains essen- 
tially unchanged so long as such vessels do not satisfy the strict require- 
ments of warships as established by the traditional law. 13 The accuracy 

12 See pp. 56-7, 67-70, 319-2^, 336-7. 

13 In one opinion of the American-German Mixed Claims Commission, established after 
World War I, adjudicating claims for compensation of losses suffered through the destruction 
of ships by Germany or her allies, the following conclusion was reached: "Neither (a) the 
arming for defensive purposes of a merchantman, nor (b) the manning of such armament by a 
naval gun crew, nor (c) her routing by the Navy Department of the United States for the pur- 
pose of avoiding the enemy, nor (d) the following by the civilian master of such merchantman 
of instructions given by the Navy Department for the defense of the ship when attacked by or 

42 



of this contention must be found, however, largely in the identification of 
"legal status" with the competence to exercise belligerent rights at sea. 
It cannot prejudice the possible conclusion that this lack of competence 
to exercise belligerent rights does not — at the same time — also serve to 
confer upon merchant vessels continued exemption from the liability of 
commissioned naval vessels to attack and possible destruction. 14 It should 
further be observed that if the principal purpose of restricting the legal 
status of naval forces to those vessels possessing the characteristics of war- 
ships as established by the traditional law is to preserve the distinction 
between combatants and non-combatants in naval warfare this purpose is 
not being well served. For the apparent effect of retaining the traditional 
requirements in a period when merchant vessels are increasingly integrated 
into the military effort of belligerents is to deprive such vessels of the im- 
munities of non-combatants while at the same time denying them the full 
rights conferred upon combatants in warfare at sea. 

C. AERIAL FORCES IN WARFARE AT SEA 

It is hardly possible to assert that the identifying characteristics of com- 
batant forces in aerial warfare has as yet been resolved in a definitive 
manner. In the absence of international convention regulating this aspect 
of aerial warfare such regulation as does exist must be based either upon 
an application to aerial warfare of the rules identifying legitimate com- 
batants in naval or land warfare or upon the actual practices of belligerents 
in the conduct of aerial warfare. Both of these possibilities involve certain 
difficulties. The practices of belligerents during World War II were not 
always uniform, and even where a marked degree of uniformity was ap- 
parent doubt may remain as to whether so short a practice is to be considered 
as satisfying the requirements of customary law. 15 The application "by 
analogy" of the requirements lawful combatants must meet either in naval 
or land warfare is objectionable if only for the reason that aerial warfare 
is a distinct form of waging war, which cannot be easily assimilated to 
the older forms of warfare. The differences existing between land and 
naval warfare with respect to the identification of legitimate combatants 



in danger of attack by the enemy, nor (e) her seeking the protection of a convoy and submitting 
herself to naval instructions as to route and operation for the purpose of avoiding the enemy, 
nor all of these combined will suffice to impress such merchantman with a military character." 
At the same time, however, the Commission expressly disclaimed passing judgment upon 
whether any of the conditions enumerated above entitled Germany, according to the existing 
rules of international law, to attack and destroy allied merchant vessels. U. S. Naval War 
College, International Law Decisions and Notes, 1925, pp. 189-90, 2.14. 

14 See pp. 55-70 for a detailed discussion of the conditions under which belligerent merchant 
vessels may be attacked and destroyed either with or without prior warning. 

15 See pp. vj ff. 

43 



should constitute a warning against attempts to apply to aerial warfare 
rules operative to troops on land or to vessels at sea. 16 

In this study the problem of identifying legitimate combatants in aerial 
warfare is limited to aircraft which either make up a part of the naval forces 
of belligerents or which participate in operations of a naval character. In 
the light of this qualification and of the relevant practices of World War II 
the following tentative conclusions may be drawn. In principle, the char- 
acteristics considered essential to qualify a vessel to exercise belligerent 
rights at sea have been applied to the conduct of aerial warfare as well. 
During World War II there was a general disposition on the part of the 
belligerents to consider as entitled to exercise belligerent rights only those 
aircraft that were incorporated into the military forces of the state, that 
were commanded and manned by military personnel, and that showed such 
marking as would clearly indicate nationality and military character. 17 

16 Thus an clement of uncertainty remains as to whether in naval warfare the identifying 
characteristics of lawful combatants should attach to the aircraft (as in naval warfare to the 
vessel), to the personnel manning the aircraft (as in land warfare to troops), or to both aircraft 
and personnel. J. M. Spaight, Air Power and War Rights (3rd. ed., 1947), pp. 76 ff., contends 
that in aerial warfare combatant identification must be primarily attached to the aircraft, that 
aircraft are obligated to use the military markings of their state, and that personnel are not 
required to wear a uniform (identity tokens being sufficient to establish combatant status). 
It is apparent that Spaight considers aerial warfare to resemble, in this respect at least, naval 
warfare. Stone (pp. cit., p. 6iz), on the other hand, questions these conclusions, and while 
admitting that practice to date suggests an "inchoate prohibition" against the use of false 
markings by aircraft, asserts that the details of any clear prohibition to this effect have yet 
to emerge. 

17 See Law of Naval Warfare, Section 5ood. — For a review of World War II practices regarding 
combatant quality in aerial warfare, see Spaight, op. cit., pp. 76-107. — Articles 13 and 14 of 
the unratified 1913 Rules of Aerial Warfare, drafted by the Commission of Jurists at The Hague, 
stated that: "Belligerent aircraft are alone entitled to exercise belligerent rights ... A mili- 
tary aircraft shall be under the command of a person duly commissioned or enlisted in the 
military service of the State; the crew must be exclusively military." The General Report 
on these provisions of the 19x3 Rules declared that: "Belligerent rights at sea can now only be 
exercised by units under the direct authority, immediate control and responsibility of the State. 
This same principle should apply to aerial warfare. Belligerent rights should therefore only 
be exercised by military aircraft . . . Operations of war involve the responsibility of the 
State. Units of the fighting forces must, therefore, be under the direct control of persons 
responsible to the State. For the same reason the crew must be exclusively military in order 
that they may be subject to military discipline." U. S. Naval War College, International Law 
Documents, 1924, p. 114. 



44 



IV. RULES GOVERNING WEAPONS AND 
METHODS OF NAVAL WARFARE 

A. THE GENERAL PRINCIPLES OF THE LAW OF WAR 1 

The guiding principle in a consideration of the rules governing the 
weapons and methods of naval warfare is that in the absence of restrictions 
imposed either by custom or by convention belligerents are permitted in 
their mutual relations to use any means in the conduct of hostilities. The 
essential purpose of the law of naval warfare is to define those actions that 
are prohibited to belligerents in warfare at sea. Indeed, this purpose is 
characteristic not only of the law of naval warfare but of the whole of the 
law of war. Historically, it is true that in the development of the means 
for waging hostilities it has been frequently asserted — both by governments 
and by writers on the law of war — that the introduction of a novel weapon 
or method must be regarded as unlawful until such time as expressly per- 
mitted by a specific rule of custom or convention. To the extent that such 
assertions have been based upon the alleged principle that what is not ex- 
pressly permitted in war is thereby prohibited, they must be regarded as 
unfounded. 

It is not uncommon, however, that claims as to the illegality of a novel 
weapon or method of war have been based upon the quite different premise 
that the weapon or method in question violates some general principle of 
the customary law of war; that although not expressly forbidden by a 
specific rule of custom or convention, the disputed means nevertheless falls 
within the purview of the prohibitions contained in one or more of these 
general principles. The validity of this latter claim has occasionally been 
obscured by its identification with the unwarranted assertion that what is 
not expressly permitted in war is thereby prohibited. In fact, what ought 
to be contended is that the lawfulness of the weapons and methods of war 
must be determined not only by the express prohibitions contained in 
specific rules of custom and convention but also by those prohibitions laid 
down in the general principles of the law of war. 2 

1 It is to be emphasized that the following pages are concerned only with the mutual rela- 
tions of belligerents and not with neutral-belligerent relations. 

2 Erik Castren correctly expresses the point made above as follows: "The idea, entertained 
by some writers, that everything is allowed in warfare that is not expressly prohibited cannot 
be accepted, as customary law alone may condemn such acts. The approbation or rejection 
of new arms and new methods of waging war depends on whether they conform to the general 
principles of warfare." op. cit., p. 187. A similar view is taken by Alfred Verdross, who 

45 



The general principles of the law of war may be briefly stated. There 
is, to begin with, the principle distinguishing between the armed forces 
and the civilian population of a belligerent. In accordance with this 
principle individuals who form the non-combatant population of a bel- 
ligerent must not be made the object of direct attack provided they refrain 
from the commission of all acts of hostility, and must be safeguarded from 
injuries not incidental to military operations directed against combatant 
forces and other legitimate military objectives. 3 There is, in addition, 
the principle of humanity which forbids the employment of any kind or 
degree of force that is unnecessary for the purpose(s) of war; force which 
needlessly or unnecessarily causes human suffering and physical destruction 
is prohibited. 4 Finally, there is the principle forbidding the resort to 
treacherous means, expedients, or conduct in the waging of hostilities. 5 

It has long been recognized that one of the primary purposes of the more 
specific customary and conventional rules of war has been to secure, through 
detailed regulations, the effective observance of these general principles. 
In naval warfare, for example, the specific rules governing the treatment to 
be accorded to enemy merchant vessels, as contrasted with the treatment 
accorded to warships, are based largely upon the principle distinguishing 
between combatants and non-combatants. In this instance, it is usual to 
state that the treatment of belligerent merchant vessels must be considered 
as the application to naval warfare of the principle distinguishing between 
combatants and non-combatants. Assuming this contention to be correct, 
it may be further stated that where the general principles of the law of war 
have received — through the agreement of states — detailed application in the 

observes that all means which serve the purpose of defeating the enemy in war are permitted 
if they do not transgress either specific prohibitions or the general principles of the law of war. 
Volkerrecht (3rd. ed., 1955), p. 361. In this connection it is important to distinguish between 
the position taken in the text and the opinion — considered as incorrect — that any weapon 
necessary for the purpose of war may be employed by belligerents except a weapon designed 
solely to cause unnecessary suffering and injury to personnel. The military necessity of a 
weapon is not, of itself, a guarantee of its legality. The use of a weapon in war is legal only 
if it is not forbidden by the law of war. Such prohibition may result either from a specific 
rule of custom or convention or from the general principles of the law of war. 

3 Law of Naval Warfare, Article zii and notes thereto. It may be observed that in Article 
2.Z1 the terms "civilian population" and "non-combatants" are used interchangeably. The 
same usage is followed throughout the present text. Strictly speaking, the distinction between 
"combatants" and "non-combatants" is one made within the armed forces, the latter .category 
comprising those individuals (e. g., medical and hospital personnel, chaplains) attached to or 
accompanying the armed forces in a special capacity. On the other hand, the term "civilian 
population" refers — in this strict sense — to the population of a belligerent other than those 
persons making up the armed forces. Most writers use the terms "civilian population" and 
"non-combatants" interchangeably, however, and do not use the latter term solely in its 
original — and restricted — sense. This is quite unobjectionable and need not give rise to any 
confusion. 

4 Law of Naval Warfare, Section 2.2.0b and notes thereto. 
6 Law of Naval Warfare, Section 2.2.0c and notes thereto. 

46 



form of specific rules, the question of the proper interpretation of these gen- 
eral principles can only be answered by an examination of the former. 
Hence, to the extent that the conduct of war is increasingly subjected to 
such regulation resort to the general principles of the law of war must be- 
come, in turn, correspondingly less frequent. The reason for this is simply 
that the essential function of these general principles is to provide a guide 
for determining the legal status of weapons and methods of war where no 
more specific rule is applicable. 

In a period marked by rapid developments in the weapons and methods of 
war — and whose regulation by specific rules of custom or convention has 
not as yet been achieved — it is only natural to expect that the general prin- 
ciples of the law of war will assume a special significance. Unfortunately, 
however, considerable difficulties are encountered in the attempt to apply 
these general principles to means for conducting hostilities that have not 
as yet been made a matter of common agreement among states. In part, 
this may be attributed to the fact that the states themselves interpret and 
apply these principles, and being interested parties must be expected to act 
in accordance with their varying interests. However, even if it were as- 
sumed that states possess a greater degree of objectivity in their interpreta- 
tion of legal rules than past experience could possibly vindicate, difficulties 
would still remain owing to the very nature of the general principles of the 
law of war and their uncertain status in an era of total war. 

To a certain extent the application of the general principles of the law of 
war has always varied, depending upon the area of warfare to which they 
have been applied. This disparity in application is readily apparent when 
comparing the methods of warfare forbidden in hostilities on land as dis- 
tinguished from naval hostilities. 6 In part, this disparity is due to differ- 
ences in the conditions and circumstances attending the conduct of war on 
land and at sea. In part, it may be attributed simply to the peculiarities of 
historical development. Whatever the cause, it is hardly to be expected 
that these general principles will receive either a uniform or a self-evident 
application to novel methods of warfare in view of this past experience with 
respect to the traditional methods of conducting hostilities. New forms of 
warfare inevitably create new problems in the attempt to apply the general 
principles of the law of war. It may be — and is — true that the novel cir- 
cumstances attending new forms of warfare do not constitute a valid reason 
for failing to apply these general principles. But the validity of this con- 
tention should not serve to gloss over the practical obstacles invariably 
encountered in all such endeavors. The meagre results to date of the at- 
tempts to apply the general principles of the law of war to the conduct of 
aerial warfare may serve, in this respect, as a clear warning. Elsewhere it 

6 E. g., the varying rules relating to the seizure and confiscation of enemy private property, 
the right of enemy merchant vessels to resort to acts of forcible resistance against a warship 
attempting seizure, and the disparity in the rules governing ruses in land and naval warfare. 

47 



is pointed out that when the principle distinguishing between combatants 
and the civilian population is applied to the particular circumstances of 
aerial warfare the results are likely to prove altogether different from the 
results of applying this same principle to land and naval warfare. 7 

To the foregoing must be added a further consideration. Recent experi- 
ence has made it quite clear that the general principles of the law of war 
depend for their application upon standards which are themselves neither 
self-evident nor immutable. Hence, it is not merely the application of 
general principles to varying circumstances that is in question but the very 
meaning of the principles that are to be applied. It will be apparent, for 
example, that the scope of the immunity to be granted non-combatants 
must depend very largely upon the meaning given to the concept of military 
objective. But the concept of a military objective will necessarily vary 
as the character of war varies. And even if it were possible today to 
enumerate with precision those targets that could be regarded as constitut- 
ing legitimate military objectives there would still remain the problem of 
determining the limits of the "incidental" or "indirect" injury that ad- 
mittedly may be inflicted upon the civilian population in the course of 
attacking military objectives. The answer to this latter problem may 
largely depend, in turn, upon the kinds of weapons that are used to attack 
military objectives, including weapons whose legal status is itself a matter 
for determination in accordance with these same general principles. 

The principle of humanity raises similar considerations. As applied to 
weapons and methods of war not already expressly regulated by specific 
rules, the principle of humanity is used to determine the lawfulness of 
novel weapons and methods for conducting hostilities in terms of their 
military necessity. 8 The necessity of a weapon must be determined by 
the purpose — or purposes — of war. Even assuming that the purpose of 



7 See pp. 146-9. 

8 Mention must be made of the widely held belief that the principles of military necessity 
and humanity largely contradict one another, that they serve opposing purposes, and that it 
is the task of the law of war to attempt to balance considerations of military necessity against 
the requirements of humanity. A recent expression of this view is given by W. G. Downey 
(pp. cit. pp. z6o-i), who, following Spaight's earlier formulation in War Rights on Land, asks: 
"The question is how best to balance these conflicting interests and the problem must be 
answered, each time a new weapon or new projectile is developed, under the test established 
by Spaight: 'Does the new weapon or the new projectile disable so many of the enemy that 
the military end thus gained condones the suffering it causes?' " This belief must be seriously 
questioned. Rather than "contradict" the principle of humanity, the principle of military 
necessity implies the former principle. The principle of necessity does not allow the employ- 
ment of force unnecessary or superfluous to the purposes of war. Nor does the principle of 
humanity oppose human suffering or physical destruction as such. It is the unnecessary inflic- 
tion of human suffering and the wanton destruction of property that is opposed, both by the 
principle of military necessity and by the principle of humanity. Although generally con- 
sidered as two quite separate principles these remarks suggest the conclusion that military 
necessity and humanity may be regarded as merely two aspects of the same principle. 

48 



war remains constant, it has never been easy to determine whether a specific 
weapon or method does cause unnecessary suffering or physical destruction. 9 
Nor is this difficulty alleviated by the assertion that in order to determine 
the proper interpretation of the principle of humanity attention must be 
directed to the practice of states. Undoubtedly it is true that the practice 
of states may determine that the resort to certain means for waging hos- 
tilities is unlawful, particularly ii it is assumed that such practice is con- 
stitutive of a rule of custom. But then the source of the particular prohi- 
bition would be the very practice that is considered constitutive of a rule 
of custom, and it is merely superfluous to cite the general principle of 
humanity. Thus, the contention that the use of poison gas is forbidden 
by the principle of humanity must be distinguished from the quite different 
contention that the numerous efforts by states to outlaw gas warfare is 
indicative of a practice that has now assumed the character of custom. 
Although the efforts to prohibit gas warfare may be the result, in large 
measure, of the conviction that gas constitutes an inhumane weapon, it 
would nevertheless appear that the present legal status of gas warfare must 
be determined by inquiry into the practice of states (specifically: by in- 
quiring whether this practice has now become constitutive of a specific 
rule of custom) rather than by continued reference to the criteria contained 
in the principle of humanity. 10 

Still more relevant in this connection, though, is the further considera- 
tion that the purposes of war have not remained constant. A war fought 
for the purpose of obtaining a more defensible frontier is something quite 
different from a war whose purpose is the complete defeat and unconditional 
surrender of the enemy. But if the purposes of war may vary, then the 
measures necessary to achieve these purposes may be equally varied. It 
can hardly be expected that the principle of humanity will receive the same 
interpretation in a war that is total, with respect to its purposes, as it has 
received in wars that have been fought for limited purposes. 

In summary: despite their intrinsic significance and undoubted validity, 

9 It is generally agreed that Article z%e of the Regulations annexed to Hague Convention IV 
(1907) has been without substantial effect. By forbidding belligerents "to employ arms, 
projectiles, or material calculated to cause unnecessary suffering," this provision merely states, 
in conventional form, the principle of humanity as this principle applies to weapons. Since 
Article z.$e does not attempt to enumerate any specific weapons falling within this prohibited 
category it does not materially improve upon the general prohibition already laid down by the 
principle of humanity. And it is presumably for this reason that the newly revised U. S. Army 
Rules of Land Warfare (1956) quite correctly declare, in interpreting Article 2.5c of the Hague 
Regulations, that: "What weapons cause 'unnecessary injury' can only be determined in light 
of the practice of states in refraining from the use of a given weapon because it is believed to 
have that effect" (paragraph 34 (b)). 

10 See pp. 51-3 for an examination of this practice. In fact, the ready assumption that the 
use of gas constitutes an inhumane form of warfare has always been questioned. It is not at 
all self-evident that the suffering caused by the use of gas outweighs the military purposes 
achieved through its use. Yet this must be the test. 

49 



the general principles of the law of war have always suffered under certain 
limitations which have served to limit their potential utility. The very 
character of these general principles must lead to difficulties of interpreta- 
tion and application. These difficulties are magnified, of course, by the 
fact that the principal subjects of the law normally must interpret and apply 
the law. The consequences of this latter condition admittedly are not 
without effect upon the whole of the law of war. No rule can be so specific 
that its interpretation and application remain unaffected by the condition 
of extreme decentralization characteristic of international law. Never- 
theless, a measure of certainty may at least be achieved to the degree that 
the general principles of the law of war are given a more concrete form 
through the establishment of detailed rules of custom and — particularly — 
convention. In the absence of such detailed regulation their interpretation 
and application with respect to the rapidly changing weapons and methods 
of warfare will be — almost of necessity — a matter of endless controversy 
and consequent uncertainty. 

B. WEAPONS IN NAVAL WARFARE 

The distinction between the legality of a weapon, apart from its possible 
use, and the limitations placed upon the use of an otherwise lawful weapon, 
is frequently overlooked, despite its importance. Any weapon may be put 
to an unlawful use, e. g., if directed exclusively against the civilian popu- 
lation or if used to inflict unnecessary suffering or wanton destruction. In 
naval warfare there have been very few — if any — specifically naval weapons 
whose legality, irrespective of their possible use, has been the subject of 
serious dispute, though there have been numerous controversies over the 
uses to which weapons — legitimate in themselves — have been put. 11 
However, to the extent that naval hostilities may involve the use of 
weapons whose principal employment is in land warfare, it is clear that 
the rules applicable to land forces are equally applicable to naval forces. 12 

11 Perhaps the best illustration of this point is furnished by mines. As against the naval 
forces of belligerents the use of all types of mines has never been seriously questioned. The 
provisions of Hague Convention VIII (1907) did not purport to establish restrictions upon the 
employment of mines against enemy warships, but attempted — however inadequately — to insure 
the "security of peaceful shipping." Nor did the disputes arising from the belligerent use 
of mines during the two World Wars relate to the status as such of this category of weapons. 
These disputes did concern the possible use to which mines could be put, particularly when such 
use resulted in endangering the security of peaceful shipping (see pp. 303-5). A further illustra- 
tion of the distinction drawn above is provided by submarines. As a weapon employed in 
naval warfare there has never been serious doubt over the legality of submarines. Instead, 
the controversy has concerned the particular uses to which submarines have been put or — 
more precisely — the methods that have characterized the use of submarines (see pp. 57-73). 

12 Thus, Article Z3C of the Regulations annexed to Hague Convention IV (1907), although 
immediately directed to land warfare, is equally applicable to naval warfare. See also Article 
Z3a of the Hague Regulations forbidding belligerents "to employ poison or r. oisoned weapons." 

50 



There are three categories of weapons whose possible use in naval warfare 
warrants their brief consideration : weapons employing fire, poisonous and 
asphyxiating gases, and nuclear weapons. As employed against the naval 
forces of a belligerent — and it is from this point of view alone that these 
weapons are examined here — the first and third categories may be con- 
sidered as permitted, whereas the second category must probably be re- 
garded as prohibited. 

Weapons employing fire include tracer ammunition, flame-throwers, 
napalm, and other incendiary instruments and projectiles. Although the 
use of such weapons occasionally has been questioned, principally upon the 
ground that they inflict unnecessary suffering, the practice of states may be 
considered as sanctioning their employment. 13 

A measure of uncertainty still characterizes the legal status of poisonous 
and asphyxiating gases, when employed by a belligerent not obligated by a 
treaty which prohibits their use. It is true that a large number of states 
are now bound by the provisions of the 19215 Geneva Protocol forbidding the 
"use in war of asphyxiating, poisonous, or other gases, and of all analogous 
liquids, materials or devices," and have extended this prohibition to in- 
clude bacteriological methods of warfare. However, there remain a sub- 
stantial number of states, including the United States and Japan, that have 
never ratified the Protocol. In the absence of treaty restrictions the latter 
states are bound only by those obligations imposed by customary law. 

Apart from treaties, it has been argued that the use of poisonous or 
asphyxiating gases violates at least two prohibitions of the customary law 
of war : the prohibition against the employment of weapons calculated to 
cause unnecessary suffering and the rule forbidding attack upon non- 
combatants. 14 In the case of poisonous gases the further contention has 



13 The Declaration of St. Petersburg (1868) prohibited the signatories from employing pro- 
jectiles of a weight below 400 grams (14 ounces) which are "explosive or charged with fulmi- 
nating or inflammable substances." It is doubtful whether the Declaration has ever been 
considered as applicable to aerial warfare. Article 18 of the unratified 19Z3 Hague Rules of 
Aerial Warfare stated that the "use of tracer, incendiary or explosive projectiles by or against 
aircraft is not prohibited," and subsequent practice has been to use such projectiles against 
aircraft. See Spaight, op. cit., pp. 197 ff. As for flame throwers and similar weapons, a few 
writers still challenge their status, maintaining that they inflict unnecessary suffering. In 
view of present practice, this opinion is difficult to accept. The U. S. Army Rules of Land War- 
fare, paragraph 36, states: "The use of weapons which employ fire, such as tracer ammunition, 
flame-throwers, napalm and other incendiary agents, against targets requiring their use is not 
violative of international law. They should not, however, be employed in such a way as to 
cause unnecessary suffering to individuals." And see Law of Naval Warfare, Article 6iza. 

14 The report of the General Board of the U. S. Navy on the question "Should Gas Warfare 
be Prohibited, ' ' and submitted by the American delegation to the 19ZZ Washington Conference 
On the Limitation of Armaments, stated : ' 'The two principles of warfare, (1) that unnecessary 
suffering in the destruction of combatants should be avoided, (z) that innocent non-combatants 
should not be destroyed, have been accepted by the civilized world for more than one hundred 
years. The use of gases in warfare insofar as they violate these two principles is almost uni- 



399334—57- 



51 



been made that their use violates the rule forbidding the employment of 
poison or poisoned weapons. 

Each one of the foregoing claims is open to question, however. The 
rule prohibiting poison or poisoned weapons can be considered applicable 
to gases only by analogy or by necessary implication. 15 The rule forbidding 
attack against the civilian population is not relevant here, since the as- 
sumption is that the weapons under consideration will be employed only 
against combatant forces. Nor is there reason to believe that these weap- 
ons cannot be confined, in their use, to the combatant forces of a state. 
Whether such suffering as is caused by gas is "unnecessary" when judged 
by the military purposes thereby served, and therefore inhumane, is at least 
doubtful. Earlier discussion has pointed out that in view of the vague cri- 
teria forming the content of the principle of humanity, the decision as to 
whether a particular weapon is inhumane, hence forbidden, must depend 
upon the actual practice of states. The important question, then, would 
appear to be whether or not the practice of states may be considered as pro- 
viding sufficient evidence that the use of poisonous or asphyxiating gases 
is now generally forbidden, quite apart from any specific obligations 
imposed by treaty. 

It is believed that a review of state practice does support the conclusion 
that the use of poisonous or asphyxiating gases is to be regarded as presently 
forbidden in war to all states; that this practice — which consists of treaties, 
proposed drafts of treaties, and the pronouncements of states both in time 
of peace as well as in time of war — is constitutive of a customary rule 
forbidding the use of poisonous or asphyxiating gases. 16 It is of course 

versally condemned today, despite its practice for a certain period during the World War." 
The report went on to declare that although certain gases, e. g., tear gas, could be used without 
violating the two basic principles cited above, "there will be great difficulty in a clear and 
definite demarcation between the lethal gases and those which produce unnecessary suffering 
as distinguished from those gases which simply disable temporarily." For this reason the 
General Board recommended the prohibition of gas warfare "in every form and against every 
objective." U. S. Naval War College, International Law Documents, 1921, pp. 193-4. 

15 It would appear that the rule prohibiting poisoned weapons would apply — if at all — only 
in the event a poisonous gas is both odorless and colorless. In the latter case, detection and 
prior warning might prove impossible and there would be clearer grounds for assimilation 
of poisonous gases under the rule prohibiting poison, since the latter is based principally upon 
the conviction that the use of poison constitutes a form of treachery. Presumably the same 
considerations would apply in considering the legality of bacteriological and biological weapons, 
even though such weapons are used only against combatant forces. 

16 But see Law of Naval Warfare, Article 6i2.b as well as U. S. Army Rules of Land Warfare, 
paragraph 38. — For a brief review of state practice see Stone, op. cit., pp. 553-7. Also Oppen- 
heim-Lauterpacht Qop. cit., pp. 342.-4), where it is concluded that recent drafts and pronounce- 
ments "bear witness to the tendency to universality in the prohibition of chemical warfare." 
The broad scope of this conclusion must be questioned. The prohibition against the resort 
to all forms of "chemical warfare" is binding — at best — only upon the contracting parties to 
the 192.5 Geneva Protocol. Even here there is some doubt since the English text of the Protocol 
prohibits "asphyxiating, poison, or other gases," whereas the French text forbids "gaz asphyxi- 

52 



true that in the absence of a system of international inspection and control 
of prohibited weapons the effectiveness of the rule forbidding poisonous or 
asphyxiating gases must depend largely upon the expectation of states that 
resort to these weapons will provoke retaliation in kind from an opponent. 17 
It is not easy to understand, however, why this fact should be considered 
as an argument against the position that resort to poisonous or asphyxiating 
gases is now prohibited in law. 18 The threat of retaliation, or reprisal, 
must provide a decisive factor in leading to the observance of the whole 
of the law regulating the conduct of war. Yet it has seldom been con- 
tended that to the extent that this law is dependent for its observance 
upon the threat of reprisal it is thereby deprived of its validity. 19 

ants, toxiques ou similaires." Under the English version all forms of gas are prohibited, 
by a literal interpretation. Under the French version only specific types are forbidden. In 
addition, certain chemical types of weapons, at times asphyxiating in nature (e. g., white 
phosphorus, smoke, flame throwers), were employed during World War II without raising 
serious question. — Greater uncertainty must be expressed, however, over the existence today 
of a customary rule prohibiting the use of bacteriological weapons. No doubt as between the 
parties to the 19x5 Geneva Protocol the resort to such weapons — save as a measure of reprisal 
against their prior use by an enemy — is forbidden. But whereas there is in the case of gas an 
impressive practice of states pointing toward the unlawful character of the resort to gas warfare, 
a similar practice does not yet exist in the case of bacteriological weapons. It does seem reason- 
ably clear, though, that the present tendency with respect to bacteriological warfare is moving 
in a direction similar to that earlier taken with respect to gas warfare. 

17 Thus the 19x5 Geneva Protocol was ratified by a number of states with the qualification 
that it would cease to be binding with respect to other ratifying states which failed to observe 
the provisions of the Protocol. The Protocol does not forbid the manufacture of gases and 
bacteria, only their use in war. 

18 "Since . . . the Protocol of 192.5, is subject to reciprocity, its compulsiveness as law seems 
difficult to distinguish from the jactual compulsion arising from the mere threat of retaliation." 
Stone, op. cit., p. 556. Precisely the same statement could be made concerning any number of 
the rules of war whose character as law are not questioned. 

19 In this connection, it is relevant to note the reasons given by the representative of the 
United States in the United Nations Disarmament Commission for refusal on the part of the 
United States to support the proposal that the Security Council appeal to all states to accede 
to or ratify the 1915 Geneva Protocol. "The United States representative . . . stated that 
the United States did not trust the paper promises of those who bore false witness especially 
when the false charges provided false excuses for breaking promises — on alleged grounds of re- 
prisals. The United States had never used bacterial warfare. It had used gas warfare only 
in retaliation during the First World War, when it was first used by Germany. Of the two 
wars in the twentieth century in which poison gas was used, it was significant that its use 
was inaugurated by States which had bound themselves on paper not to use it. Aggressor 
States which started wars in violation of their treaty obligations could not be trusted to keep 
their paper promises regarding the methods of waging wars, if keeping those promises stood 
in the way of their accomplishing their aggressive designs. If men fought to kill, it was not 
easy to regulate how they killed. The United States wanted to eliminate all weapons which 
were not expressly permitted and appropriate to support the limited number of armed forces 
which might be permitted to maintain public order and to meet Charter obligations. The 
United States, as a member of the United Nations, had committed itself, as had all other mem- 
bers, to refrain not only from the use of poisonous gas and bacterial warfare, but the use of 
force of any kind contrary to the Charter. The United States . . . would support effective 

53 



The preceding considerations relating to the legal status in war of 
poisonous or asphyxiating gases are not without significance in considering 
the legal status of nuclear weapons. In marked contrast to gas warfare 
there is neither any treaty expressly regulating — or prohibiting altogether — 
the use of nuclear weapons nor is there any evidence as yet of a practice that 
may be considered as constituting sufficient basis for the emergence of a 
customary prohibition. Whatever restriction may be applied to nuclear 
weapons must therefore be derived from rules already regulating war's 
conduct. In this connection the rules prohibiting the infliction of un- 
necessary suffering and requiring that a distinction be drawn between 
combatants and civilian population undoubtedly constitute the more 
general, and the more significant, grounds for questioning the legality of 
using nuclear weapons in war. 20 

The objection that the use of nuclear weapons must cause unnecessary 
suffering (and destruction) deserves only the briefest comment. As already 
pointed out, the question as to whether or not a particular weapon is to be 
considered as causing unnecessary suffering is one that can be answered 
only by examining the practice of states. In the case of poisonous and 

proposals to eliminate all weapons adaptable to mass destruction, including atomic, chemical 
and biological weapons. But until such measures and safeguards had been agreed upon, it 
did not intend to invite aggression by committing itself not to use certain weapons to suppress 
aggression. To do so in exchange for mere paper promises would be to give would-be aggres- 
sors their own choice of weapons." Disarmament Commission, Official Records, Spec. Supp; No. 
i, 2nd Report of the Disarmament Commission (1951), pp. 144-5. The resort to the unlawful use 
of force — aggression — does not thereby serve to justify use by the victims of aggression of 
weapons that are otherwise unlawful according to the law of war. If the contrary were true 
then it could also be argued that none of the rules regulating war's conduct bind the victims 
of aggression. Nor is it easy to understand the objection that the signing of "paper promises" 
(i. e., treaties) necessarily invites aggression, if unaccompanied by an effective system of con- 
trol and inspection. Aggression is "invited" only if the treaty in question forbids the use 
and the manufacture of certain weapons without, at the same time, establishing an effective 
system of control. This is certainly not true of the 192.5 Geneva Protocol. 

20 Of lesser importance is the rule prohibiting the use of poison or poisoned weapons and the 
provisions of the 1915 Protocol of Geneva forbidding the use of gases as well as "analogous 
liquids, materials or devices." For a detailed consideration of atomic weapons in the light of 
these principles — and the conclusion as to their illegality — see A. N. Sack, "ABC — Atomic, 
Biological, Chemical Warfare in International Law," Lawyers Guild Review, 10(1950), pp. 161-80. 
The preponderant opinion among writers has not been to condemn nuclear weapons as being 
necessarily unlawful, however. Where doubt has been expressed it is concentrated principally 
upon the legitimacy of using such weapons against military objectives located in or near centers 
of population and the danger of obliterating completely the already threatened combatant-non- 
combatant distinction. This is, for example, the burden of Spaight's remarks, op. cit., pp. 
173-7. On the other hand, it has been recently concluded that "the total elimination or limi- 
tation, as a matter of law, of the use of the atomic weapon cannot be accomplished by way of a 
restatement of an existing rule of law. Such a restatement denying the legality of the use of 
the atomic weapon must, of necessity, be based on controversial deductions from supposedly 
fundamental principles established in conditions vastly different from those obtaining in mod- 
ern — total and scientific — warfare." Lauterpacht, "The Problem of the Revision of The Law 
of War," p. 370. 

54 



asphyxiating gases it has been suggested that the practice of states does 
point to the existence of a rule of universal validity forbidding the use of 
such weapons as inhumane. In the case of nuclear weapons the matter is 
quite different. The present attitude of most of the major powers is clearly 
not that of considering the suffering caused by nuclear weapons as un- 
necessary, when judged by the military purposes these weapons are designed 
to serve. 

It is equally difficult to accept the objection that nuclear weapons are 
necessarily illegal for the reason that their use must lead to the complete 
obliteration of the rule distinguishing between combatants and the civilian 
population. It is only when such weapons are used against military 
objectives in the proximity of the non-combatant population that this 
objection warrants serious consideration. 21 To the extent that nuclear 
weapons are used exclusively against military forces in the field or naval 
forces at sea, they escape this objection. Nor is there reason to believe 
that nuclear weapons cannot be directed exclusively against combatant 
forces in the strict sense of the term. To the extent that they are so limited, 
their use at present may be considered as permitted by the law of war. 22 

C. THE ATTACK AND DESTRUCTION OF ENEMY VESSELS 

In the following pages attention is directed to the present status of the 
rules governing the liability of enemy vessels — and particularly of enemy 
merchant vessels — to attack. It is still customary in treatises on the 
law of naval warfare to consider the problem of the liability of enemy 
merchant vessels to attack as one largely incidental to, and resulting from 
the exercise of, the belligerent right to seize and condemn the vessels and 
goods of an enemy. In view of recent developments this procedure bears 
a distinct element of artificiality, and this would seem so even though it 
be asserted that the traditional rules governing the liability of enemy 
merchant vessels to attack retain their validity today. At the very least, 
the conditions in which recent hostilities at sea have been conducted no 
longer permit considering the liability of enemy merchant vessels to attack 
as an exceptional circumstance — save perhaps in the most formal sense. 
Indeed, as between belligerents it is the seizure of merchant vessels that 

21 There should be little doubt that, as judged by the traditional meaning given to the prin- 
ciple distinguishing combatants from non-combatants, the use of nuclear weapons against 
cities containing military objectives must be deemed illegal. However, the same judgment 
would probably have to be made in considering the practices of aerial bombardment followed 
by belligerents during World War II, though very few writers have condemned these recent 
practices as unlawful, and no records of war crimes trials are known in which allegations were 
made of illegal bombardment from the air (see pp. 146-9). 

22 See Law of Naval Warfare, Article 613 and notes thereto. Paragraph 35 of the U. S. Army 
Rules of Land Warfare reads: "The use of explosive 'atomic weapons,' whether by air, sea or 
land forces, cannot as such be regarded as violative of international law in the absence of any 
customary rule of international law or international convention restricting their employment." 

55 



threatens to become the exception rather than — as it once was— the normal 
procedure. In consequence, the once clear distinction drawn between 
combatants and non-combatants in naval hostilities has been placed in 
serious jeopardy. The events that have led to the present situation warrant 
careful consideration. 

i . The Traditional Rules Governing the Liability of Enemy Vessels to Attack 

In the period preceding the outbreak of war in 1914 the rules governing 
the liability of enemy vessels to attack and destruction appeared reasonably 
well settled. Enemy warships, that is to say all enemy vessels possessing 
the competence to exercise belligerent rights at sea, 23 could be attacked on 
sight and, if necessary, destroyed. 24 Privately owned and operated enemy 
merchant vessels were liable — with minor exceptions 25 — to seizure and 
subsequent condemnation in the prize courts of the capturing belligerent. 26 
This belligerent right to seize and condemn the privately owned vessels 
of an enemy found at sea did not preclude the application in other — and 
more important — respects of the principle distinguishing between com- 
batants and non-combatants. In particular, it did not serve to free a bellig- 
erent from the obligation to refrain from attacking the merchant vessels 
of an enemy so long as these vessels refrained from the performance of 
certain acts. It is true that a belligerent was permitted, under exceptional 
circumstances, 27 to destroy seized enemy merchant vessels rather than to 
conduct the latter into port for adjudication. But in those circumstances 
where destruction was permitted it could be carried out only after the 
passengers and crew had been removed to a place of safety. 

At the same time, it is important to observe that belligerent merchant 
vessels were placed under no obligation to submit to visit and search, and 
seizure, by an enemy. According to well established custom, belligerent 
merchant vessels were at liberty to use the means at their disposal in order 



23 See pp. 38-41. 

24 The liability to attack of other public vessels which did not form a part of the military 
forces of a state (e. g., customs and police vessels), and which did not fall within the category 
of public vessels accorded special exemption from either capture or destruction (see pp. 96-8), 
remained uncertain. Some writers assume that the liability to attack of such public vessels 
has always been substantially the same as that of warships. For example, Hyde declares that 
the "absence of armament on a public vessel (not exempt from capture) has not been deemed 
to offer a sufficient reason why an enemy force should not attack it at sight." op. cit., p. 1993. 
In fact, neither Hyde nor many other writers appear to distinguish sufficiently between unarmed 
public vessels which do not form a part of the armed forces of a state and unarmed vessels which 
do form a part of these forces. Whereas the latter are always liable to attack on sight, the 
liability of the former to attack was not free from doubt. If anything, the preponderance of 
opinion seemed to incline to capture, and to attack prior to capture only if resistance were 
offered. See U. S. Naval War College, International Law Topics, 1914, pp. i _ 34- 

25 See pp. 86-98. 

26 A procedure not required in the case of captured public vessels since ownership in such 
vessels immediately vested in the government of the captor by virtue of the fact of capture. 

27 The nature of these circumstances is discussed elsewhere (see pp. 106-7). 

56 



to avoid seizure. They could refuse to stop upon being duly summoned by 
a warship of the enemy. They could, in addition, take measures of resist- 
ance against enemy warships attempting seizure, and for this purpose were 
permitted to carry defensive armament. However, in the event either of 
persistent refusal to stop upon being duly summoned or of active resistance 
to attempted seizure belligerent warships were permitted to take those meas- 
ures of force necessary to compel submission. In these circumstances the 
rule forbidding the attack upon or destruction of enemy merchant vessels 
without first placing passengers and crew in a place of safety ceased to 
apply. Immunity from attack also ceased to apply to those merchant 
vessels performing acts of direct assistance at sea to the naval forces of a 
belligerent. 

2. The Experience of World Wars I and II. 
The rules outlined above represented the application to naval warfare 
of the general principle distinguishing between combatants and non- 
combatants. When the first World War broke out in 191 4 these rules 
were accorded general recognition by the major naval powers. It soon 
became apparent, however, that not all of the belligerents were prepared 
to conduct hostilities in accordance with the traditional law. The most 
serious departures from the principle distinguishing between combatants 
and non-combatants in hostilities at sea must be attributed to Germany 
and to the latter 's use of submarines. Despite these departures, the care 
with which Germany sought to justify her conduct of submarine warfare — 
primarily upon the right of reprisal 28 — is not without a certain significance. 
It indicated that during the first World War, at least, the conviction 
strongly persisted that under normal circumstances the rules distinguishing 
between the treatment to be accorded combatants and non-combatants 
ought to be respected. The widespread opinion that Germany justified 
her conduct of submarine warfare simply by the proposition that new 
weapons create new rules must therefore be seriously questioned. 29 It 



28 The principal "reprisal" measures resorted to by Germany were declared in February 1915 
and January 1917. On the former occasion Germany proclaimed the intention to attack and 
to destroy all enemy merchant vessels found within the waters surrounding Great Britain and 
Ireland. On January 31, 1917 the German Government announced that henceforth it would 
forcibly prevent "in a zone around Great Britain, France, Italy and in the eastern Mediterranean 
all navigation, that of neutrals included, from and to England, and from and to France, etc. 
All ships met within that zone will be sunk." cited in Hackworth, Digest of International Law 
(1943), Vol. VI, pp. 465-81. For a further discussion of these measures, see pp. X96-305- 

29 It is quite true that isolated expressions to this effect may be found. Thus, in a memoran- 
dum of March 8, 191 6, from the German Ambassador to the American Secretary of State, it was 
noted that: "... Germany was compelled to resort, in February 1915, to reprisals in order to 
fight her opponents' measures, which were absolutely contrary to international law. She 
chose for this purpose a new weapon the use of which had not yet been regulated by inter- 
national law and, in doing so, could and did not violate any existing rules, but only took into 
account the peculiarity of this new weapon, the submarine boat." cited in Hackworth, op. cit', 
Vol. VI, p. 478. It is also true that in 1916 the German Naval Staff concluded that the sub- 

57 



would appear more accurate to state that, apart from reprisals, Germany's 
principal argument on behalf of her conduct of submarine warfare was 
based upon the contention that the novel circumstances in which that 
conflict was being waged justified a policy of attacking enemy merchant 
vessels on sight and without warning. One of the principal circumstances 
upon which Germany came to rely was the vulnerability of the submarine 
in relation to armed British merchant vessels instructed to use their arma- 
ment against any attempt at seizure by an enemy submarine. 30 

The central question raised by the arming of belligerent merchant vessels 
concerned the effect this measure could be considered to have upon the 
immunity from attack normally granted the latter. 31 The position con- 
sistently taken by Great Britain has been that the right of merchant vessels 
to carry armament to be used for defensive purposes only is one clearly 
recognized by customary law, and that so long as merchant vessels restrict 
the use of such armament to measures of self-defense they may not be 
deprived — simply for the reason that they are so armed — either of their 
non-combatant status or of their normal exemption from attack. 32 In 

marine, being a novel weapon, must provide "its own lines of conduct." Nevertheless, despite 
these and other isolated expressions to the contrary, Germany's official position was not based 
upon the argument that new weapons must thereby create new rules. Nor — for that matter — 
was it based upon the closely related argument that "old rules" cannot automatically bind 
-'new weapons" (i. e., the submarine). 

30 In the latter stages of World War I, and during World War II, armed merchant vessels were 
instructed to use their armament upon sighting an enemy submarine, the assumption being 
that unlawful attack by the submarine would — in any event — be forthcoming. 

31 This, at least, is the central question raised as between belligerents. A quite different question 
concerns the effect the arming of merchant vessels may have in determining the treatment 
to be accorded them in the ports and territorial waters of neutral states (see pp. 147-51). 

32 See Higgins and Colombos (op. cit., pp. 363-9) for a statement of the British position. 
Substantially the same position was taken in both World Wars by France, and Article z of the 
French Naval Instructions of 1934 provided that enemy merchant vessels were not to be attacked 
for the sole reason ("le seul motif") that they bore defensive armament. — During World War 
I the position finally taken by the United States, while still neutral, was in support of the British 
attitude. Earlier, however, the United States had advocated that in return for a pledge that 
submarines would adhere strictly to the customary rules in carrying out search and seizure, 
merchant vessels of belligerent nationality should be prohibited from carrying any armament. 
In the 1939-41 period of neutrality this country refrained from raising any question as to the 
belligerent arming of merchant vessels. Finally, as a belligerent in both wars the United 
States resorted to the practice of arming its merchant vessels and of manning such armament 
with naval gun crews. See, generally, Hackworth, op. at., Vol. VI, pp. 489-503. 

It may also be noted that frequently the discussion of the effect of arming merchant vessels 
suffers from the endeavor to establish that the carrying of armament does not thereby serve to 
confer upon a merchant vessel the status of a warship. In principle, this argument may be 
considered to be correct. Defensively armed merchant vessels have no competence to exercise 
belligerent rights at sea, and if found doing so the officers and crew may be treated — in strict 
law — as war criminals. However, this fact does not of itself prove that armed merchant 
vessels, if refraining from the exercise of belligerent rights at sea, must thereby be accorded 
exemption from attack without prior warning. There are two quite different questions in- 
volved here, as Hyde Cop. cit., p. 1997) correctly observes in stating that the fact that "an 

58 



practice, this position would require a warship to follow the procedure 
normally prescribed by the traditional law in attempting to seize an armed 
enemy merchant vessel; in the absence of other reasons providing an inde- 
pendent justification for attack 33 force may be resorted to — according to 
this view — only if the merchant vessel first makes use of its armament in 
order to resist. 

The German view, on the other hand, has been one of refusing to accept 
the claim that the arming of belligerent merchant vessels does not result in 
rendering such vessels liable to attack on sight. Indeed, the initial German 
reaction to the arming of British merchant vessels was to consider the act a 
violation of international law on the part of Great Britain, and to threaten 
to treat the personnel of vessels making use of their armament — even for 
allegedly defensive purposes — as war criminals. But the more consistent, 
and more moderate, position has been to consider the carrying of armament 
simply as depriving enemy merchant vessels of immunity from attack with- 
out warning and without taking prior precautions for the safety of the 
crew. 34 

armed merchantman may retain its status as a private ship is not decisive of the treatment to 
which it may be subjected." The difficulty involved is due to the frequent use of the term 
"legal status" in two different senses. It may refer to the conditions necessary for the conver- 
sion of a merchant vessel into a warship. But it may refer to the fact that a merchant vessel 
is subject to the same liabilities as a warship although, by retaining its non-combatant character, 
it does not possess the competence to exercise belligerent rights at sea. 

33 The significance of this qualification ought not to be overlooked. As will presently be 
noted, the "other reasons" that provide independent justification for the attack on sight of 
enemy merchant vessels — whether armed or unarmed — have reduced substantially the importance 
of the question under immediate consideration. These circumstances not only include the per- 
sistent refusal to stop upon being duly summoned and any form of active resistance to 
seizure (e. g., the sending in of position reports upon sighting enemy warships, and particularly 
enemy submarines) but the integration of merchant vessels in any manner into the enemy's 
military effort at sea. 

34 The German position has never been altogether clear, though, and the statements made in 
the text therefore border on over-simplification. On a number of occasions Germany has 
contended that any armed resistance to the regular measures of prize law is forbidden. During 
World War I it appeared that this latter position would necessarily lead to treating armed 
resistance on the part of enemy merchant vessels as a war crime. But this position was cer- 
tainly without foundation in the traditional law and — apart from the notorious trial and execu- 
tion of Captain Fryatt for attempting in 1915 to ram a German submarine that had ordered 
him to stop — was not seriously pursued by the German Government. In addition, neither 
the German Prize Law Code of 1914 nor the preponderance of German writers lent any sub- 
stantial weight to this extreme claim. Quite different, however, was the contention that 
merchant vessels engaged in unlawful behavior if they sought to destroy an enemy warship 
(e. g., submarine) before the latter took any steps to effect seizure. And there is no question 
but that the so-called "defensive-offensive" action permitted to armed British merchant 
vessels came very close to the exercise of forbidden offensive action. Of course, the British 
argument was that the persistent unlawful behavior of German submarines permitted British 
merchant vessels to anticipate the probability of an unlawful attack and to take "preventive 
measures of self-defense." 

On the whole, however, it would appear that the principal German position has been that 

59 



The controversy thus occasioned during the first World War over the 
arming of belligerent merchant vessels continued into the inter-war period 
and can scarcely be considered as wholly resolved even today. When 
judged by the customary law the British position appears, on first con- 
sideration, as unexceptionable. The difficulty of this position, however, 
is that despite its apparent conformity with the customary law it was 
applied during World War I (and during World War II) in both a manner 
as well as in circumstances that bore little relation to the circumstances and 
manner of employment characteristic of the preceding period. 

It has always appeared rather paradoxical that although enemy merchant 
vessels were at liberty to resist attempted seizure, and could even carry 
armament for this purpose, warships were normally obliged to refrain from 
attacking merchant vessels until the latter had first actually resorted to 
measures of resistance. If an enemy merchant vessel carried armament 
whose sole purpose was evidently to provide means of resistance against 
attempted seizure, then it would seem only reasonable to allow a warship — 
particularly if inferior in defensive power — to attack such armed vessels on 
sight. In part, the explanation of this seeming paradox may be attributed 
to the carrying over of a practice formed under quite different historical 
circumstances. During an earlier period the danger of attack from priva- 
teers, or from pirates, served to justify the carrying of arms not only in 
time of war but in time of peace as well. As the nineteenth century 
progressed this earlier justification for arming belligerent merchant vessels 
largely disappeared. At the same time, the rule exempting the merchant 
vessels of an enemy from attack gained ground. Indeed, it was only during 

while arming of merchant vessels does not serve to transform the latter into warships, it does 
justify treating such vessels as liable to attack without warning. The German Prize Law Code 
of September 1939 was silent on this matter but on September 30, 1939, the Deutsches Nachrichten 
Buro stated that henceforth armed enemy merchant vessels would be treated like warships and 
sunk without warning. It was further declared: "Armed resistance to the regular measures 
of prize law is not permissible. Arming a merchant ship alone does not make of the latter a 
warship, but does justify the adversary in treating the merchant ship as a warship to the same 
extent that it is equipped for the use of armed force." cited in Hackworth, op. cit., Vol. VI, 
p. 499. In substance, this has also been the position taken by perhaps the majority of German 
writers. Indeed, the view that the presence of armament on board an enemy merchant vessel 
served to justify attacking such vessel without warning was urged even prior to World War I. 
See, for example, the opinions expressed by Professor Heinrich Triepel before the Institute of 
International Law in 1913 QAnnuaire de VInstitut de Droit International, 2.6 (1913), pp. 516 ff.). 
And for the inter-war period see, in particular, P. A. Martini, Reformvorschlage zum Seekriegsrecht 
(1933) and the detailed argument given by Werner Plaga, Das bewaffnete Handelsschiff (1939)- 
The latter writer argued that the British position was devoid of any- legal foundation even in 
the pre-1914 law, and that, in any event, the specific measures taken by the British in arming 
their merchant vessels after 1914 served to deprive the latter of immunity from attack. — And 
for a recent view, see Professor Verdross, op. cit., p. 389. Though declaring that the carriage 
of armament for "mere defense" is admissible, in that it does not serve to turn enemy merchant 
vessels into illegitimate combatants, Professor Verdross is not altogether clear as to whether 
such carriage may deprive enemy merchant vessels of immunity from attack without warning. 

60 



the course of this past century that the distinction between the treatment 
of combatants and non-combatants in warfare at sea became firmly estab- 
lished. The continued retention, on the one hand, of the ancient tule 
allowing belligerent merchant vessels to arm in self-defense and, on the 
other hand, the growing immunity granted to merchant vessels if they 
refrained from measures of resistance, is to be explained, however, largely 
by the disparity in power that existed between warship and merchant 
vessel. 

In retrospect, it is clear that one of the principal reasons for the increased 
measure of immunity granted enemy merchant vessels during the nineteenth 
century was this very disparity, and that the degree to which this immunity 
was observed was roughly proportionate to the difference in power between 
warship and merchant vessel. 35 In fact, during the century preceding the 
outbreak of war in 1914 the practice of arming merchant vessels was aban- 
doned almost entirely, only to be revived by the announcement of the 
British Government in 1913 that in the event of war it would supply its 
merchant vessels with defensive armament. Although the initial purpose 
of this measure was to provide merchant vessels with the means to defend 
themselves against seizure by converted enemy warships it soon became 
readily apparent that the principal employment of such armament was to be 
directed against enemy submarines (and, during World War II, against 
enemy aircraft as well). But in the case of submarines this former disparity 
in power between warship and merchant vessel became negligible, provided 
that the merchant vessel was armed and the submarine required to attempt 
seizure before resorting to force. Under these circumstances the submarine — 
and any other type of warship not clearly superior in power to the armed 
merchant vessel — was almost certain to encounter active resistance if it 
attempted to conform with the traditional law. And the instructions 
furnished British armed merchantmen in both World Wars, stipulating that 
enemy submarines should be attacked on sight, made it difficult — and in 
many cases impossible — to draw a clear line between defensive and offensive 
action. In any event, it is not easy to see why belligerent merchant vessels 
may be armed for the sole purpose of attacking enemy submarines on sight, 



35 It is upon this consideration that many writers have placed greatest emphasis. Thus Hyde 
Qop. cit., p. 1997), in concluding that the carrying of armament by a merchant vessel serves to de- 
prive the vessel so armed of the right to claim immunity from attack without warning, states that 
the "immunity of merchant vessels from attack at sight grew out of their impotency to endanger 
the safety of public armed vessels of an enemy, . . . maritime states have never acquiesced in 
a principle that a merchant vessel so armed as to be capable of destroying a vessel of war of any 
kind should enjoy immunity from attack at sight, at least when encountering an enemy cruiser 
of inferior defensive strength." Also, to the same general effect, G. G. Wilson, "Armed Mer- 
chant Vessels and Submarines," A. /. I. L., Z4 (1930), pp. 337-8; Edwin Borchard, "Armed 
Merchantmen," A. J. I. L., 34 (1940), p. no; and J. L. Kunz, Kriegsrecht und Neutralitdtsrecht, 
pp. 118-35. 



61 



but enemy submarines considered as without a similar right to take "de- 
fensive" measures by attacking armed merchant vessels on sight. 36 

Perhaps even more important was the manner in which merchant vessels 
were armed and directed to use their armament. The traditional law as- 
sumed that the owner of a private vessel would decide for himself whether 
or not to carry arms, would arm — if at all — at his own expense, and would 
determine under what conditions he would choose to make use of such arms. 
In short, the fact that a merchant vessel was armed did not mean that it 
was in any way incorporated into the military effort of a belligerent, or 
that it was acting under the direct control of the state. In World War I, 
as in World War II, the manner in which merchant vessels were armed and 
were directed to use their armament no longer met these assumptions. The 
state decided upon the arming of merchant vessels, providing both guns 
and personnel to operate the guns, and directed merchant vessels as to the 
manner in which they were to employ their armament. 37 

On balance, then, the lengthy dispute relating to the position of armed 
merchant vessels, particularly with respect to submarines, appears incon- 
clusive. The real strength of the British position is not to be found in the 
claim that the arming of merchant vessels was sanctioned by the customary 
law. Instead, it must be found in the contention that the effective use of 
the submarine was, in the vast majority of cases, incompatible with the 
observance of the rules distinguishing between combatants and non- 
combatants, that Germany had not observed these rules in conducting 
submarine warfare, and that the arming of merchant vessels was the only 
possible means to be taken against the unlawful use of submarines. Yet 
the fact remains that the initial British decision to arm merchant vessels 
was taken prior to World War I. More important were the circumstances 
in which merchant vessels were armed and directed to use their arms, 
circumstances which hardly allowed the assumption that these vessels 
retained a peaceful and strictly non-combatant status. It is difficult to 
avoid the conclusion that the immunity granted merchant vessels by the 
traditional law can be observed only under the conditions that merchant 



36 In a memorandum of March 2.5 , 1916, prepared by the Department of State for the President, 
it was observed that: "A merchantman entitled to exercise the right of self-protection may do 
so when certain of attack by an enemy warship, otherwise the exercise of the right would be so 
restricted as to render it ineffectual. There is a distinct difference, however, between the 
exercise of the right of self-protection and the act of cruising the seas in an armed vessel for the 
purpose of attacking enemy naval vessels." The German Government in commenting upon 
this memorandum observed: "It admits . . . the merchant vessel's right to resort to self- 
defense as soon as it is certain of attack by an enemy warship, as otherwise the exercise of the 
right would be so restricted as to be made ineffectual; exactly the same grounds support the 
position that a warship that is entitled to exercise the right of capture may use force when 
certain of attack by an armed enemy merchant vessel." cited in Hackworth, op. cit., Vol. VI, 
pp. 497-8. 

37 See H. A. Smith, Law and Custom of the Sea, p. 87, and The Crisis in the Law of Nations, 
pp. 6o-x. 

& 



vessels do not present — in terms of their armament — a serious threat to 
enemy warships and that they are in no way integrated into the military 
effort of a belligerent. If either, or both, of these conditions do not obtain, 
and they were not satisfied even in World War I, warships — whether sub- 
marines or surface vessels — cannot be expected to refrain from attacking 
enemy merchant vessels. 

In the period following the first World War the continued validity of 
the traditional rules regulating the attack and destruction of enemy vessels 
was reaffirmed on a number of occasions, and in 1930 these rules were given 
conventional expression at the London Naval Conference in the Treaty on 
the Limitation and Reduction of Armament. Article 2.2. of the London 
Naval Treaty of 1930 declared: 

The following are accepted as established rules of International 
Law: 

(1) In their action with regard to merchant ships, submarines 
must conform to the rules of International Law to which surface 
vessels are subject. 

(2.) In particular, except in the case of persistent refusal to stop 
on being duly summoned, or of active resistance to visit and search, 
a warship, whether surface vessel or submarine, may not sink or 
render incapable of navigation a merchant vessel without having 
first placed passengers, crew, and ship's papers in a place of 
safety. For this purpose the ships' boats are not regarded as a 
place of safety unless the safety of the passengers and crew is 
assured, in the existing sea and weather conditions, by the prox- 
imity of land, or the presence of another vessel which is in a 
position to take them on board. 38 

According to the terms of the 1930 London Naval Treaty, Article zz was 
to remain in force "without limit of time." Upon the expiration of the 
remainder of the Treaty in December 1936 this provision therefore remained 

38 It should be observed that Article 2.x, insofar as it attempted merely to restate in conven 
tional form the traditional law, ought not to be interpreted as permitting attack only under 
those circumstances to which reference is expressly made. Any such interpretation clearly 
would not be in accord with the pre-existing law, which allowed a. belligerent warship to 
attack enemy merchant vessels for acts in addition to refusal to stop on being duly summoned 
or active resistance to visit and search. The committee of jurists responsible for the formulation 
of Article ix of the London Naval Treaty stated in its report on this article: "The committee 
wish to place on record that the expression 'merchant vessel', where it is employed in the 
declaration, is not to be understood as including a merchant vessel which is at the moment 
participating in hostilities in such a manner as to cause her to lose her right to the immunities 
of merchant vessels." 'Proceedings, London Naval Conference, (1330), p. 189. No reference is 
made to the treatment to be accorded armed merchant vessels. In fact, the Treaty left this all 
important question where it found it. And see U. S. Naval War College, International Law Situ- 
ations, 1930, pp. 1-65, for a general review of the 1930 London Naval Treaty in its bearing upon 
the conduct of submarine warfare. 

63 



binding upon the contracting Parties. However, in November of the same 
year (1936) Article 22. of the London Naval Treaty was incorporated verbatim 
in the form of a Protocol, the purpose of this being to increase the number of 
states accepting the obligations contained therein. At the time of the 
outbreak of war in 1939 some forty odd states, including all the major 
naval powers, had either ratified, or had expressly acceded to, the 1936 
London Protocol, and the provisions of the Protocol were given prominent 
place in the naval instructions issued by many governments to their naval 
forces. 39 Nor was there any serious question over the applicability of 
these rules to military aircraft when used in operations against enemy 
merchant shipping. 40 

Despite this reaffirmation of the traditional law in the 1936 London 
Protocol, the record of belligerent measures with respect to enemy merchant 
vessels during World War II fell far below the standards set in the pre- 
ceding conflict. In the Atlantic Germany resorted to unrestricted sub- 
marine and aerial warfare against British merchant vessels almost from the 
very start of hostilities. 41 Once again the measures taken by Germany 
were justified in part as measures of reprisal and in part as resulting from the 

39 See paragraph 50 of the 1941 Tentative Instructions For the Navy of the United States Governing 
Maritime and Aerial Warfare (cited throughout as 1941 Instructions}. The earlier 1917 Instructions 
For the Navy of the United States Governing Maritime Warfare (cited throughout as igiy Instructions} 
did not contain a parallel provision, paragraph 45 providing for the resort to forcible measures 
against enemy merchant vessels if the latter resisted or took to flight after once being sum- 
moned. Article zz of the London Naval Treaty also formed a part of the German Prize Law- 
Code of 1939 (Article 74). 

40 Distinguish between the diversion of merchant vessels by aircraft and the attack of mer- 
chant vessels by aircraft. Although there was a good deal of dispute over the former question 
during the inter-war period there was no dispute over the applicability to aircraft of the rule — 
already applicable to surface warships and submarines — forbidding the attack and destruction 
of enemy merchant vessels without having first placed passengers and crew in a place of safety. 

41 S. W. Roskill summarizes the German resort to unrestricted submarine warfare in the 
following passage: 

"On the 13rd of September, Hitler, on the recommendation of Admiral Raeder, approved 
that 'all merchant ships making use of their wireless on being stopped by U-boats should be 
sunk or taken in prize.' As the immediate despatch of a wireless signal in such circumstances 
was included in the Admiralty's instructions to merchant ships and was essential — if for no 
other reason — to the rescue of their crews, this German order marked a considerable step towards 
unrestricted warfare. ... On the 30th of September observance of the Prize Regulations 
in the North Sea was withdrawn; and on the znd of October complete freedom was given to 
attack darkened ships encountered off the British and French coasts. Two days later the 
Prize Regulations were cancelled in waters extending as far as 15 ° West, and on the 17th of 
October the German Naval Staff gave U-boats permission 'to attack without warning all ships 
identified as hostile.' The zone where darkened ships could be attacked with complete freedom 
was extended to zo° West on the 19th of October. Practically the only restrictions now placed 
on U-boats concerned attacks on liners and, on the 17th of November, they too were allowed 
to be attacked without warning if 'clearly identifiable as hostile.' Although the enemy this 
time carefully avoided the expression 'unrestricted U-boat warfare,' it can therefore be said that, 
against British and French shipping, it was, in fact, adopted by the middle of November 1939." 



64 



circumstances in which hostilities at sea were being conducted. The obli- 
gations laid down in the 1936 London Protocol were not denied. Emphasis 
was placed rather upon the argument that the methods of warfare employed 
by Great Britain, and particularly the measures taken to integrate British 
merchant shipping into Britain's military effort at sea, prevented German 
compliance with the provisions of the 1936 London Protocol. 42 

Great Britain refrained during the initial stages of the conflict from 
resorting to measures of a similar nature. The British reprisals order of 
November Z7, 1939, taken in response to alleged unlawful German mine and 
submarine warfare, sought instead to cut off all German exports whether 
carried in enemy or in neutral bottoms. 43 Indeed, for a substantial period 
of time British aircraft were forbidden to attack any enemy ships other than 
warships, troopships, and "auxiliaries in direct attendance on the enemy 
fleet." 44 As the war progressed certain areas were declared to be "danger- 

Military History of the Second World War: The War at Sea, i<)$<)-i<)4$ (1954), Vol. I, pp. 103-4. 
This summary follows substantially the evidence brought forward against Admirals Raeder 
and Doenitz during their trial before the International Military Tribunal at Nuremberg. See 
Nazi Conspiracy and Aggression (1946), Vol. II, pp. 815-76. The German resort to unrestricted 
aerial attack on enemy shipping followed almost immediately upon the decision to initiate 
unrestricted submarine warfare. Spaight (op. cit., pp. 487-8) lists the date as December 17, 
1939. 

42 On September 19, 1939, the Commander in Chief of the German Navy, Grand Admiral 
Raeder, declared: 

"Germany is conducting submarine warfare in accordance with the Prize Laws issued on 
August 2.8, 1939. These are strictly in accordance with the acknowledged rules of maritime war. 
The provisions of the London Submarine Protocol are taken over in full in them. The sub- 
marines have strict orders to comply with these provisions. In harmony with the rules of the 
Submarine Protocol they are however justified in breaking armed resistance with all means. 
It is obvious that ships which participate in warlike measures or travel in convoy of enemy 
warships place themselves in danger and cannot complain when in the course of belligerent 
actions they are damaged or destroyed." cited in Hackworth, op. cit., Vol. VI, p. 484. Also 
the passage from the judgment of the Nuremberg Tribunal summarizing the testimony of 
Doenitz: 

"Doenitz insists that at all times the Navy remained within the confines of international 
law and of the Protocol. He testified that when the war began, the guide to submarine war- 
fare was the German prize ordinance taken almost literally from the Protocol, that pursuant 
to the German view, he ordered submarines to attack all merchant ships in convoy, and all 
that refused to stop or used their radio upon sighting a submarine. When his reports indicated 
that British merchant ships were being used to give information by wireless, were being armed, 
and were attacking submarines on sight, he ordered his submarines on 17 October 1939, to 
attack all enemy merchant ships without warning on the ground that resistance was to be 
expected." U. S. Naval War College, International Law Documents, 1946-4J, p. 2.98. 

43 See p. 311. 

44 Roskill states that by this policy "only warships, troopships or 'auxiliaries in direct 
attendance on the enemy fleet' could be attacked, and then only if identified beyond doubt. 
Even if an enemy merchant ship opened fire with her defensive armament our craft were for- 
bidden to retaliate ... It will readily be understood how far this policy made air action 
ineffective against all types of enemy merchant ships, including, for example, disguised mer- 
chant raiders. During the whole of 1940 only sixteen enemy merchant ships, totalling xz,47z 
tons, were sunk by air attack and seventeen were damaged." op. cit., p. 144. In March 1940 

65 



ous to shipping" and within some of them enemy vessels were liable to 
be attacked and sunk on sight. In the final stages of the conflict the 
measures taken by Great Britain against enemy shipping wherever en- 
countered were only barely distinguishable from a policy of unrestricted 
warfare. 45 

In the Pacific no attempt was made by either of the major naval bel- 
ligerents to observe the obligations laid down by the 1936 London Protocol. 
Immediately upon the outbreak of war the United States initiated a policy 
of unrestricted aerial and submarine warfare against Japanese merchant 
vessels, and consistently pursued this policy throughout the course of 
hostilities. 46 Japan, in turn, furnished no evidence of a willingness to 
abide by the provisions of the Protocol, and — in fact — Japanese submarines 
attacked without warning and destroyed an American merchant vessel 
within a few hours following the attack upon Pearl Harbor. 47 

these restrictions were relaxed slightly, and in May unrestricted attacks against enemy shipping 
were permitted "off the south coast of Norway and in the Skagerrak" (p. 145). Further 
relaxations were announced in June and July 1940, but it was not until March 1941 "that 
permission was given to attack enemy or enemy-controlled merchant shipping at any time, 
whether at anchor or under way, at sea or in port" (p. 337). See also Spaight, op. cit., pp. 
489-93. One factor in bringing on unrestricted aerial warfare was the German practice of 
scuttling their ships, an act which, in effect, amounted to resistance to seizure. 

45 In these latter stages the British practice was to assimilate enemy merchant vessels to the 
status of supply or auxiliary vessels. According to custom such vessels are considered as liable 
to attack without prior warning. — It is feared that the above summary does less than justice 
to the British record at sea, particularly in the first year or so of the conflict. It should be 
emphasized that during this period Great Britain clearly manifested a desire not to be drawn 
into unrestricted warfare against enemy shipping and, in the end, did so only reluctantly. 

46 The U. S. Navy Department despatch of December 7, 1941 to naval forces in the Pacific read : 
"Execute unrestricted air and submarine warfare against Japan." 

In an official survey made following World War II it was estimated that United States forces 
sunk 2.JI17 Japanese merchant vessels. Of this number 1,113 were sunk by submarines. See 
Japanese Naval and Merchant Shipping Losses During World War II by All Causes (Prepared by the 
Joint Army-Navy Assessment Committee, NAVEXOS P-468) (1947), pp. 6-7. 

47 No apparent attempt was ever made officially by the United States to base the policy of 
unrestricted warfare against Japanese merchant vessels either upon the right of reprisal or 
upon the quasi-military character of Japanese merchant shipping. On February z, 1946 a curious 
statement occurred in a Navy Department Press Release entitled United States Submarine Con- 
tributions to Victory in the Pacific. Referring to the despatch of December 8, 1941 to execute un- 
restricted air and submarine warfare the statement noted: 

"It is true that Germany had for years been waging unrestricted submarine warfare in the 
Atlantic. It is true that Japanese submarines sank a merchant ship in the Pacific within a few 
hours after the attack on Pearl Harbor. It was also true that the conditions under which Japan 
employed her so-called merchant shipping was such that it would be impossible to distinguish 
between 'merchant ships' and Japanese Army and Navy auxiliaries and these conditions would 
sooner or later have forced us to adopt the position which we boldly assumed at the outset. 
However, the existing 'Instructions for the Navy of the United States Governing Maritime 
and Aerial Warfare' were so restrictive as to practically preclude a submarine attack on any- 
thing but an unmistakable man of war . . ." 

In point of fact, neither the 1936 London Protocol — on which the 1941 Instructions were 

66 



3 . The Present Situation, 
In its judgment on Admiral Doenitz for charges of violations of the laws 
of war the International Military Tribunal at Nuremberg declared that it 
was "not prepared to hold Doenitz guilty for his conduct of submarine 
warfare against British armed merchant ships." In reaching this decision 
the Tribunal did not thereby imply that the rules laid down in the 1936 
London Protocol were to be considered as no longer binding upon bel- 
ligerent warships in their behavior toward enemy merchant vessels. 48 
There was no indication that, in the Tribunal's opinion, the ineffectiveness 
of the Protocol in regulating belligerent conduct had served to deprive it 
of its character as law. Indeed, the most reasonable interpretation of this 
particular aspect of the judgment rendered by the Nuremberg Tribunal is 
that the latter clearly assumed the continued validity of the 1936 London 
Protocol as it relates to inter-belligerent measures. 

The significance of the Tribunal's judgment must instead be found in the 
reasons given for its refusal to hold Doenitz guilty for his conduct of sub- 
marine warfare against British armed merchant ships. These reasons are 
summarized as follows: 

Shortly after the outbreak of war the British Admiralty, in ac- 
cordance with its Handbook of Instructions of 1938 to the mer- 
chant navy, armed its merchant vessels, in many cases convoyed 
them with armed escort, gave orders to send position reports upon 
sighting submarines, thus integrating merchant vessels into the 
warning network of naval intelligence. On 1 October 1939, the 
British Admiralty announced that British merchant vessels had 
been ordered to ram U-boats if possible. 49 

based — nor the traditional law were as restrictive as the above quoted press release appears 
to assume. It is probable that the resort to unrestricted submarine warfare could have been 
justified in this instance either as a reprisal against similar action by the enemy or as a conse- 
quence of the nature of employment of Japanese merchant vessels. 

In this connection it is also of interest to note that in testimony submitted to the International 
Military Tribunal at Nuremberg, Fleet Admiral Chester W. Nimitz declared that: "The un- 
restricted submarine and air warfare ordered by the Chief of Naval Operations on 7 December 
1941 was justified by the Japanese attacks on that date on U. S. bases, and on both armed and 
unarmed ships and nationals, without warning or declaration of war." Trials of The Major 
War Criminals (1947-49), Vol. XL, p. 11 1. 

48 Though it is true that a number of writers have so interpreted the Tribunal's judgment. 
However, for reasons noted in the text above it is believed that this interpretation has little, 
if any, support. It is, of course, quite another matter to ask how relevant may be the affirma- 
tion of the continued validity of the rules laid down in the 1936 London Protocol, in view of 
recent belligerent practices. To this latter question it is hardly possible to reply other than 
by stating that given those conditions characterizing the belligerent conduct of naval hostilities 
in World War II the traditional rules according enemy merchant vessels immunity from attack 
without warning, and without safeguarding the lives of passengers and crew, can have but 
limited relevance. 

49 U. S. Naval War College, International Law Documents, 1946-47, p. 2.99. 

399334—57 6 67 



In this brief passage the Nuremberg Tribunal took cognizance of prac- 
tices that have transformed the character of naval warfare during the past 
half century and that have made increasingly difficult the application of the 
rules distinguishing between the treatment of combatant and non-combatant 
vessels. Although varying in both form and degree, the near universal 
tendency in recent maritime warfare has been for merchant vessels to become 
a part of the belligerents' military effort at sea. 50 

In consequence, the principal assumption on which the traditional law 
was based no longer obtains — or, at least, did not obtain during World War 
II. This assumption was that a reasonably clear distinction could be drawn 
between the naval forces of a belligerent and merchant vessels having no 
relation to the belligerent's military operations. 51 It is necessary only to 
recall that even under the traditional law the immunity granted merchant 
vessels from attack depended upon a strict abstention from all active par- 
ticipation in hostilities, upon refraining from rendering any kind of direct 
assistance at sea to the military operations of a belligerent, and upon a re- 
fusal to accept the protection of a belligerent's naval forces (e. g., in the 
form of a convoy). Failure to place sufficient emphasis upon these require- 
ments of the traditional law may easily lead to the mistaken belief that the 
recent claims of belligerents to possess the right to attack enemy merchant 
vessels are invariably rooted in the theory that novel circumstances must 

50 It was this common tendency of belligerents during World War II that reduced the im- 
portance of earlier controversy over the effect of arming belligerent merchant vessels. Whether 
with or without armament merchant vessels were nearly always under instructions to report 
the position of enemy warships immediately upon sighting the latter. In effect, this practice 
amounted to incorporating merchant vessels into the belligerent's intelligence system, and the 
danger that could thereby arise for submarines attempting seizure might easily prove as great 
as the danger arising from the carriage of armament. In either case, seizure in accordance 
with the traditional methods was normally incompatible with the safety of the warship and — 
indeed — was no longer demanded of the latter. A number of writers — e. g., Guggenheim 
(op. cit., pp. 400-1) and Castren (op. cit., pp. 181-90) — in continuing to insist upon the validity 
of the traditional rules governing the attack and destruction of enemy merchant vessels, and 
justifiably so, nevertheless fail to place sufficient emphasis upon the significance of these recent 
developments, and their effect in depriving merchant vessels of that immunity formerly enjoyed. 

51 It may be noted that the immunity from attack normally granted merchant vessels need 
not, and probably should not, be made wholly dependent upon their public or private character. 
It is of course true that the distinction drawn by the traditional law between combatant and 
non-combatant vessels was heavily influenced by, and largely developed from, nineteenth century 
liberalism, with its clear separation between public and private economic activities. It is 
also clear that a state which exercises public ownership over all merchant vessels will most 
probably integrate these vessels in time of war into its military effort. Nevertheless, it is at 
least conceivable that a state might refrain from associating its publicly owned vessels engaged 
in trade with its military operations. Under these circumstances — highly improbable though 
they may be — there would seem to be no apparent justification for attacking such vessels on 
sight simply by virtue of their public ownership. To argue otherwise is to identify the com- 
batant-non-combatant distinction with an economic system rather than with the nature of 
the acts performed, an identification which is considered erroneous. See Law of Naval Warfare, 
section 500b. 

68 



serve to create new rules. These novel circumstances are generally con- 
sidered to be the effectiveness of the submarine and aircraft as commerce 
destroyers and the central importance of the economic objective in modern 
war; circumstances which, when taken together, are held to justify the 
practice that he who cannot seize (in accordance with the traditional law) 
may nonetheless sink. 52 The rejection of this theory, however justified, 
ought not to lead to a similar rejection of the quite different contention 
that novel circumstances may be considered as permitting the application 
of measures which, in an earlier period, found only the most infrequent 
use. 53 These novel circumstances are — from the present point of view — 
neither the submarine (and aircraft) nor the central importance of what has 

52 It is another matter, however, to argue that while the novel circumstances adverted to 
above may not be urged as a legal justification for departing from the traditional law (which 
retains its formal validity), they must provide an essential part of the explanation as to why 
belligerents did depart from this law and a key to any rational expectations regarding future 
belligerent behavior. This is, essentially, Professor Stone's position, op cit., pp. 599-607. 
Stone starts from the proposition that naval war law must now be seen as a function of the 
economic objective in warfare at sea, which is to shut off completely the enemy's commerce. 
"... the future of naval war law must be envisaged in the close context of the modern objec- 
tives of the economic arm of warfare. The economic and industrial struggle is a main if not 
the main conditioning factor . . ." (p. 602.). Hence the central question to Stone is "whether 
he who cannot seize may lawfully sink" (p. 603), a question applied not only to enemy merchant 
vessels but to neutral merchant vessels as well. While not denying the continued validity of 
the 1936 London Protocol (at least as "law on paper") Stone's conclusion is that in view of the 
transcendent importance of the economic objective in modern war the "immediate task is to 
regulate the future of naval warfare in which submarines and aircraft will join in the attack on 
enemy commerce; for it is regrettably clear that no rule purporting to exclude them from this 
role, however well grounded in humanity, will be brooked" (p. 606). With this change once 
made Professor Stone is confident that we may then look forward to the "growth of real rules 
for the mitigation of suffering under modern conditions" (p. 607), though no concrete sugges- 
tion is given as to the express character these "real rules" might assume. 

53 A clear distinction should be drawn, therefore, between the position that the virtual in- 
corporation of merchant vessels into the belligerent's military effort precludes the application 
of rules presupposing the possibility of clearly separating combatant from innocent merchant 
vessels, and the position that recent belligerent practice in sinking without warning all enemy 
vessels has invalidated these same rules. Whereas the former position insists upon the con- 
tinued validity of the traditional law, under the condition that belligerents refrain from incorporating 
merchant vessels in any way into their military effort at sea, the latter position insists that belligerent 
practice — and the "necessities" of total war — now permit belligerents to sink enemy merchant 
vessels on sight. Sir Hersch Lauterpacht would appear to come very close to endorsing this 
latter position when he observes that the London Protocol ' 'remained a dead letter during the 
Second World War" and that the problem of unrestricted submarine warfare "is deeper than 
that raised by the arming of merchant vessels for defensive purposes and by the interplay of 
the operation of reprisals. It touches upon the reality of any solution grounded primarily in 
the distinction between combatants and non-combatants." "The Revision of The Law of 
War," p. 374. Elsewhere, however, the same eminent writer has observed not only that 
Germany's unrestricted submarine warfare was an "illegal practice," but that in acquitting 
Admiral Doenitz of this charge — with respect to British merchant vessels — the judgment of the 
International Military Tribunal by attaching "decisive importance to the circumstance that 
merchant vessels were armed for defensive purposes or engaged in activities and received assist- 

69 



come to be known as economic warfare, but rather the insistence of belliger- 
ents upon the resort to measures which have as their direct consequence the 
integration of merchant shipping into the military effort at sea. 54 

4. Obligations of Belligerents When Attacking Enemy Vessels. 

In view of the present status of the law relating to the liability of enemy 
vessels to attack it would appear especially important to place the strongest 
possible emphasis upon those few specific rules a belligerent is obligated to 
comply with in the course of attacking enemy vessels and personnel. In 
the standard treatise on naval warfare it is not uncommon to find only the 
briefest reference to these rules. It is probable that most writers have 
deemed it superfluous to lay emphasis upon what have heretofore been 
regarded as almost self-evident prohibitions, as — for example — the pro- 
hibition against firing on unarmed and defenseless survivors. It is also 
probable that this relative inattention has been due in the past to the 
assumption that only in the most unusual circumstances would enemy 
vessels other than warships be made the object of direct attack. Un- 
fortunately, however, the circumstances in which enemy merchant vessels 
are now held subject to attack are no longer unusual and the excesses com- 
mitted by belligerents during World War II no longer allow the sanguine 
assumption that some prohibitions are too self-evident (and too deeply 
ingrained) to require laboring over. 

ance of essentially defensive character . . . is not likely to command general assent." Oppen- 
heim-Lauterpacht, op. cit., pp. 491-1. On the one hand, then, the belligerent claim to discard 
the fundamental distinction between combatants and non-combatants is very nearly acquiesced 
in, and the "necessities" imposed by total war conceded. On the other hand, the belligerent 
claim to attack enemy merchant vessels without warning, if the latter have been integrated 
into the belligerent's military effort, is largely denied, so long as this integration is justified 
as having a "defensive character." It should be apparent that the position taken in the text 
above is such as to deny the validity of the former claim while at the same time arguing for the 
legitimacy of the latter claim. 

54 Law of Naval Warfare, Article 503b (3), reads as follows: 

"Destruction of enemy merchant vessels prior to capture. Enemy merchant vessels may be 
attacked and destroyed, either with or without prior warning, in any of the following 
circumstances: 

(1) Actively resisting visit and search or capture. 

(2.) Refusing to stop upon being duly summoned. 

(3) Sailing under convoy of enemy warships or enemy military aircraft. 

(4) If armed, and there is reason to believe that such armament has been used, or is intended 
for use, offensively against an enemy. 

(5) If incorporated into, or assisting in any way, the intelligence system of an enemy's 
armed forces. 

(6) If acting in any capacity as a naval or military auxiliary to an enemy's armed forces." 
It is believed that this provision does not substantially depart from the requirements of the 

traditional law, although it does focus attention upon those recent practices of belligerents 
which serve, and have always served, to deprive belligerent merchant vessels of immunity 
from attack. 



70 



Article Z3, paragraphs c and d, of the Regulations annexed to Hague 
Convention IV (1907) declare that it is especially forbidden to "kill or 
wound an enemy who, having laid down his arms, or having no longer 
means of defense, has surrendered at discretion" or to "declare that no 
quarter will be given." These rules are applicable to hostilities wherever 
conducted. Hence, in warfare at sea, it is forbidden to refuse quarter either 
to an enemy vessel that clearly indicates a desire to surrender in good faith 
or to fire upon the unarmed and defenseless survivors of sunken enemy 
vessels. A belligerent is required to use only that degree of force necessary 
in order to compel submission of the enemy, force in excess of this require- 
ment being strictly prohibited. In addition, a belligerent is required, 
following every engagement at sea, to take all possible measures to search 
for and to rescue the shipwrecked and wounded survivors of an enemy and 
to protect the latter, as well as the dead, against pillage and ill-treatment. 55 

The rules outlined above have long been considered applicable to war- 
ships in their conduct toward the naval forces of an enemy. The same 
rules must be considered to be especially applicable to warships in their 
conduct toward enemy merchant vessels which are — in principle — liable 
to attack. Indeed, it is only reasonable to demand that in the case of 
enemy merchant vessels a special effort be made by the attacking warship 
to cease the attack once active resistance has come to an end and to exert 
the utmost endeavor to search for and rescue shipwrecked survivors. 56 



55 See Law of Naval Warfare, Arcicle 511b and c. The customary prohibition against the un- 
necessary use of force has already been discussed (see pp. 46-50). On the duty of giving quarter 
to enemy vessels, see note 36 to Chapter 5 , Law of Naval Warfare. The prohibition against firing 
on unarmed and defenseless survivors of sunken enemy vessels forms a part of the customary law. 
The obligation to rescue enemy shipwrecked and wounded survivors may also be considered a 
rule of customary law though it has received expression first in Article 16 of Hague X (1907) 
and more recently in Article 18 of the 1949 Geneva Convention for the Amelioration of the 
Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. In 
both conventions the belligerent obligation to rescue shipwrecked and wounded survivors is 
qualified. Article 16 of Hague X uses the phrase "so far as military interests permit" whereas 
Article 18 of the 1949 Geneva Convention states that: "After each engagement, Parties to the 
conflict shall, without delay, take all possible measures to search for and collect the ship- 
wrecked, wounded and sick, to protect them against pillage and ill treatment, to ensure their 
adequate care, and to search for the dead and prevent their being despoiled." 

56 These remarks are considered to apply with even greater force in the case of attacks upon 
merchant vessels by surface warships. In the Trial of Helmuth von Kuchteschell, (Law Reports . . . 
9 (1949), pp. 81-90) the accused, a commander of a German armed raider, was charged with 
committing the following acts against enemy merchant vessels: continuing to fire after the 
enemy had indicated surrender; failure to make any provision for the safety of survivors; 
and firing at survivors in liferafts. The British Military Court trying the accused found him 
guilty of committing the first and second acts, though not the third. In the notes to this case 
the following statement occurs: 

"Three propositions seem to emerge, either from the utterances of the Judge Advocate or 
from the findings of the Court: (1) no war crime is committed if an unwarned attack is made 
upon a merchantman who by reason of arms and wireless communication is part of the war 

71 



The position of the submarine (and, even more, of the aircraft) with 
respect to the fulfillment of this latter obligation is admittedly a difficult 
one. In normal circumstances the submarine has been unable to take on 
any appreciable number of survivors. In fact, even the partial attempt to 
fulfill the obligation to search for and rescue survivors may result in sub- 
jecting the submarine to serious danger from enemy warships and aircraft. 
A submarine (or aircraft) commits no violation of the law of war, however, 
if after attacking an enemy vessel 57 it is required by reasons of operational 
necessity immediately to leave the scene of the attack. The obligation to 
search for and rescue survivors is not an absolute one. A belligerent is 
required only to take all possible measures to rescue survivors consistent 
with his own security. On the other hand, the prohibition against firing 
on the defenseless survivors of sunken vessels is not similarly qualified and, 
it is believed, cannot be justified by pleading reasons of operational neces- 
sity. 

The foregoing considerations were involved in those war crimes trials 
conducted after World War II which dealt with charges arising under, or 
as a result of, the so-called ' ' Laconia Order. ' ' This order, issued September 
17, 1941, originated from the German U-boat command and was directed 
to all German submarine commanders. It ran as follows: 

(1) No attempt of any kind must be made at rescuing members 
of ships sunk, and this includes picking up persons in the water and 
putting them in lifeboats, righting capsized lifeboats and handing 
over food and water. Rescue runs counter to the rudimentary 
demands of warfare for the destruction of enemy ships and crews. 
(2.) Orders for bringing in captains and chief engineers still 
apply. 

(3) Rescue the shipwrecked only if their statements would be of 
importance for your boat. 

effort of the opposing belligerent; (i) the impunity of attack without warning on a merchant- 
man in these circumstances forms an exception to the general rules of sea warfare and imposes 
upon the attacking warship the duty to use only adequate force and not to kill or wound a 
greater number of the crew than is reasonably necessary to secure the defeat of the attacked 
vessel; (3) as soon as the attacked merchantman is effectively stopped and silenced, all possible 
steps must be taken by the raider to rescue the crew" (pp. 87-8). It was further observed that: 
"(1) ^ tne raider is aware of survivors who have taken to their lifeboats, he must make reason- 
able efforts to rescue them; (x) it is no defense that the survivors did not draw attention to their 
boats if they had reasonable grounds to believe that no quarter was being given" (p. 88). 

According to S. W. Roskill, with the one exception noted above, the captains of German 
armed merchant raiders "generally behaved with reasonable humanity towards the crews of 
intercepted ships, tried to avoid causing unnecessary loss of life and treated their prisoners, 
tolerably" op. cit., p. 2.79. Attacks upon merchant vessels by German raiders were very fre- 
quently the result of the merchant vessel's resort to the use of its defensive armament or to an 
insistence upon making use of its wireless in order to report the raider's presence and position. 
Under either of these circumstances attack upon the merchant vessel could be considered justified. 

67 It is assumed, of course, that the attack upon the enemy vessel is justified. 

72 



(4) Be harsh, having in mind that the enemy has no regard for 
women and children in his bombing attacks on German cities. 58 
The International Military Tribunal at Nuremberg found the Laconia 
Order ambiguous, and therefore refused to hold the originator of the order — 
Admiral Doenitz — guilty of deliberately ordering the killing of shipwrecked 
survivors. 69 The ambiguity of the order apparently was considered to stem 
from an uncertainty as to whether its intent was only to forbid submarine 
commanders from making any attempt to rescue survivors or was intended 
to enjoin them deliberately to kill survivors. The International Military 
Tribunal seemed to have been of the opinion that if the former interpreta- 
tion was intended the order was a lawful one. But even this opinion is 
doubtful, since the rule in question allows only for circumstances of opera- 
tional necessity. The most favorable interpretation of the Laconia Order 
was that it laid down a policy of no rescue, not solely — or perhaps not even 
primarily — for reasons of operational necessity, but because rescue was 
deemed to run " counter to the rudimentary demands of war for the destruc- 
tion of enemy ships and crews." On this basis alone the unlawful charac- 
ter of the order would seem to be readily apparent. In any event, in two 
reported trials held before the British Military Court at Hamburg it was 
amply shown that in the course of interpreting and applying the Laconia 
Order its supposed ambiguity was resolved in favor of the killing of sur- 
vivors. As such, the illegality of the order should be placed beyond 
question. 60 



58 The order was given orally, never in writing. In the Peleus Trial (Law Reports . . . 1 
(1947), p. 5) and the Trial of Karl-Hein^ Moehle (Law Reports ... 9 (1949), p. 75) the accused 
confirmed the contents of the order, reproduced above. 

59 On this point the Tribunal's judgment declared: "The Tribunal is of the opinion that the 
evidence does not establish with the certaintly required that Doenitz deliberately ordered the 
killing of shipwrecked survivors. The orders were undoubtedly ambiguous, and deserve the 
strongest censure." U. S. Naval War College, International Law Documents, 1946-47, p. 300. 

60 In the Trial of Karl-Heinz Moehle the accused, a senior officer of the 5th U-boat Flotilla, 
was charged with giving orders "to commanding officers of U-boats who were due to leave 
on war patrols that they were to destroy ships and their crews." Law Reports ... 9 (1949), 
p. 75. The orders were given in the form of briefings and were based upon the Laconia Order. 
From the sample briefings furnished as evidence at the trial it appeared clear that the Laconia 
Order was interpreted in practice as an order to kill survivors. The British Military Court 
found the accused guilty of ordering the commission of acts contrary to the law of war. In 
the notes on this case it is observed that: "If a submarine commander can, without danger to 
his boat, save or succour survivors, he is no doubt under a duty to do so. If, however, by so 
doing he would endanger his boat he cannot be held responsible if he does not save any such 
survivors since it is recognized that the safety of his own boat and its crew must be his primary 
consideration. It is clearly recognised, on the other hand, that the killing of defenceless 
survivors of a torpedoed ship is a war crime" (p. 80). 

In the Peleus Trial the commanding officer of a German submarine was charged with having 
given orders to fire on the survivors of the steamship Peleus. In presenting his defense the ac- 
cused quoted the Laconia Order, though he did not plead superior orders. The principal 
defense plea was that the order to fire on the rafts containing survivors was an operational 
necessity, and by destroying all evidence of the sinking pursuit of the submarine was made less 

73 



D. THE SEIZURE OF ENEMY VESSELS AND GOODS 

Unless specially protected by a rule of customary or conventional inter- 
national law all vessels and goods encountered at sea in time of war are 
liable to seizure and to subsequent condemnation if impressed with an 
enemy character. In this respect the conduct of naval warfare is to be 
distinguished from the methods characterizing land warfare, where the 
private property of the enemy population may not — as a general rule — be 
seized and confiscated. There is no need to deal here with the arguments 
both for and against this belligerent right in warfare at sea to seize the 
private property of an enemy. It is sufficient merely to note that despite 
a substantial opposition during the late nineteenth and early twentieth 
centuries to the retention of this right, an opposition led very largely by 
the United States, there has been no general disposition on the part of 
naval powers to relinquish a practice as old as naval warfare itself. 61 If 

probable. In finding the accused guilty the court rejected the plea that the order was opera- 
tionally necessary under the given circumstances. It is not possible to determine, however, 
whether the court was of the opinion that circumstances constituting a condition of operational 
necessity could ever serve, in law, to justify the act of killing helpless survivors. In the notes 
on this case it is stated that: "The case contains . . . no decision on the question whether or to 
what extent operational necessity legalises acts of cruelty such as shooting at helpless sur- 
vivors of a sunken ship because on the facts of the case this behaviour was not operationally 
necessary, i. e. the operational aim, the saving of ship and crew, could have been achieved 
more effectively without such acts of cruelty." Law Reports . . . i (1947), p. 16. However 
it seems clear that this latter question must be answered in the negative. 

61 A useful summary of earlier arguments for and against the retention of the belligerent 
right to seize and condemn the private property of enemy subjects may be found in U. S. Naval 
War College, International Law Topics, ipoj, pp. cj-xo. Hyde (op. cit., pp. 2.059-63) contains a 
brief review of the traditional American position, citing the proposal urged by the American 
delegation at the 1907 Hague Peace Conference, which declared that: "The private property 
of all citizens or subjects of the signatory Powers, with the exception of contraband of war 
shall be exempt from capture or seizure on the sea by the armed vessels or by the military forces 
of any of the said signatory Powers. But nothing herein contained shall extend exemption 
from seizure to vessels and their cargoes which may attempt to enter a port blockaded by the 
naval forces of any of the said Powers." And in a recent review of the inactivity since the 
Spanish- American War of American courts sitting in prize it has been stated that: "The history 
of the matter shows that the policy of the United States has tended to avoid resort to capture 
and prize, and to substitute for the form, if not always the whole substance of the doctrine, 
gentler legal devices, such as requisition for use or title upon promise or payment of just com- 
pensation. . . . Thus our country has maintained its position of endeavoring to lead the world 
towards a general law or rule of immunity from capture or destruction of peaceful merchantmen 
and cargoes not contraband." A. W. Knauth, "Prize Law Reconsidered," Columbia Law Review, 
46 (1946), p. 86. It may be relevant to observe, however, that the conditions attending American 
participation in the two World Wars are not so easily interpreted as a reluctance "to abandon 
the great reform." The device of requisition for use or title upon promise or payment of just 
compensation was used almost exclusively with respect to enemy merchant vessels caught in 
American ports at the outbreak of hostilities — and it may still be contended that such vessels 
ought to be given special consideration (see pp. 86-90). With respect to enemy merchant vessels 
encountered at sea, any conclusions drawn must be extremely tentative. In both World V\ ars 

74 



anything, recent belligerent practice has moved in the contrary direction 
of restricting — and, in certain instances, invalidating entirely — the appli- 
cation of the few rules formerly granting certain enemy vessels and goods 
exemption from seizure. However this may be, the liability of vessels and 
goods to seizure in naval warfare depends, in the first instance, merely upon 
the fact that such vessels and goods possess an enemy character. This 
being so, the determination of enemy character in relation to vessels and 
cargoes may be taken as the starting point of an inquiry into the nature 
and scope of the belligerent right to seize enemy property at sea. 62 

German merchant shipping was — by the time America became a belligerent — almost nonexistent 
in any event. And during World War II the methods pursued in the Pacific hardly pointed 
toward any practice save that of unrestricted submarine and aerial warfare against Japanese 
merchant shipping (see pp. 66-7). It may also be noted that in both World Wars neutral ship- 
ping no longer remained a major problem by the time America entered as a belligerent. These, 
and other, circumstances surely render hazardous any interpretation of the possible lines of 
action this country might pursue in the future if involved in hostilities at sea against a major 
maritime Power — and given the task of controlling substantial neutral trade. 

62 In a broader sense, of course, the belligerent right of seizure in naval warfare also extends 
to vessels and cargoes bearing a neutral character. Normally, however, neutral commerce is 
exempt from belligerent interference, and liability to seizure arises only from the performance 
of acts — contraband carriage, blockade breach, unneutral service — belligerents have a right 
to prevent according to international law. In the case of enemy vessels and goods, liability to 
seizure and confiscation follows simply from the character of the property, and requires no 
further justification (except, perhaps, to establish that the property does not come within a 
category given special protection from seizure). The law of prize therefore encompasses the 
totality of the rules governing the belligerent right to seize and to condemn privately owned 
vessels and cargoes, whether of enemy or of neutral subjects. 

Attention may once again be called to a point earlier made in the Foreword, that a detailed 
examination of prize law does not form one of the purposes of the present study. In the im- 
mediate section (D) of this Chapter, as well as in Chapters IX through XII, the attempt is 
made to indicate only in broad outline those rules which determine both the substantive grounds 
for capture and what are generally considered the procedural rules regulating the conduct of 
visit, search and seizure. No endeavor is made, however, to examine the nature and organiza- 
tion of belligerent prize courts, or the procedural rules applied by these courts — save perhaps 
where these rules have had, as in the case of contraband (see pp. Z70-6), a marked impact in 
extending the belligerent's control over neutral trade. It will also be apparent that emphasis 
has been placed primarily upon British Prize Law since 1914 — or rather the interpretation 
given the law of prize by the British prize courts during the two World Wars. The justification 
for this emphasis may be based not only upon the fact that the British decisions have been the 
most numerous and by far the most influential but also upon the conjecture that if the United 
States should in the future resort to prize proceedings — admittedly an unlikely contingency — 
American prize courts would in all probability lean heavily upon these decisions. 

The principal studies of prize law developments during World War I are J. H. W. Verzijl, 
Le Droit Des Prises De la Grande Guerre (192.4); J. W. Garner, Prize Law During the World War 
(19x7); and C. J. Colombos, A Treatise on the Law of Prize (3rd. ed., 1949). The work by Colombos 
is particularly useful since it includes the significant decisions of the 1939 War. And on World 
War II see also S. W. D. Rowson, "Prize Law During The Second World War," B. Y. I. L., 
M 0947)1 PP- 160-2.15 and A. Gervais (for a review of French, British, Italian and German 
prize decisions) in Revue Generdle de Droit International Public, Vols. 52. (1948), pp. 8z-i6i; 
53 0949)» PP- 2.01-75; 54 (1950), pp. Z51-316, 453-504; and 55 (1951), pp. 481-546. An 

75 



i . Enemy Character. 
a. Vessels. 
Normally, the enemy or neutral character of a vessel is determined by the 
flag which she has the right to fly. A vessel entitled to fly the flag of an 
enemy state and therefore having an enemy nationality may be regarded in 
every instance as bearing enemy character. But although the owners of a 
vessel are always bound by the flag they have chosen to adopt, belligerents 
are not so bound in determining the neutral or enemy character of a vessel. 
For the practice of states is clear that even though entitled to fly a neutral 
flag — and thus possessing a neutral nationality — a vessel may nevertheless 
be considered as impressed with an enemy character. 63 The neutral flag 
cannot serve as a device to protect vessels from seizure whose actual status 
indicates either continued ownership or control by individuals who them- 
selves possess enemy character. 64 

invaluable summary of the more significant World War II prize cases may be found in the 
Annual Digest and Reports of Public International Law Cases (ed. by H. Lauterpacht), 1938-48. 
Finally, among general treatises on the law of war special mention should be made of the 
stimulating and thoroughly up to date analysis given in Stone, op. cit., pp. 457 ff. 

63 It is therefore important that a clear distinction be drawn between the neutral or enemy 
nationality and the neutral or enemy character of vessels. The former — nationality — is determined 
by the flag a vessel has the right to fly, and the conditions of this right are directly determined 
by the municipal law of each maritime state. But the latter — character — is a matter solely 
within the province of international law, and international law may or may not make the 
character of a vessel coincide with its nationality. In point of fact, international law does not 
identify the two. 

In this connection the relevant provisions of the 1909 Declaration of London deserve passing 
mention. Article 57 of that unratified instrument declared: 

"Subject to the provisions respecting the transfer of flag, the neutral or enemy character of 
a vessel is determined by the flag which she has the right to fly. 

"The case in which a neutral vessel is engaged in a trade which is reserved in time of peace, 
remains outside the scope of, and is in nowise affected by, this rule." 

Article 57 thereby made the nationality of a vessel the principal test for determining its 
character. Three exceptions were provided for, however. The first concerned the fraudulent 
transfer of flag, dealt with in Articles 55 and 56. The second, mentioned in paragraph 2. of 
Article 57, refers to the so called "Rule of 1756," which holds that neutral merchant vessels 
acquire enemy character if in time of war they engage in a trade the enemy state exclusively 
reserves in time of peace to merchant vessels flying its own flag. According to the practice 
of several states the neutral vessel accepting this privilege from a belligerent thereby becomes 
so closely identified with the belligerent as to lose its neutral character. Finally, and not 
mentioned in Article 57, neutral vessels performing certain types of unneutral services for a 
belligerent thereby became impressed with enemy character — according to Article 46 — and 
liable to the same treatment as enemy merchantmen. 

64 See Law of Naval Warfare, Article 501, which abandons entirely the "right to fly" formula, 
it now being clear that flying the enemy flag is conclusive evidence of enemy character regardless 
of whether or not a vessel has the right to do so. Of course, the principal defect of Article 57 
of the Declaration of London — at least from the belligerents' viewpoint — was the exclusion 
of ownership as a criterion for the determination of enemy character. During World War I 
a number of neutral states, including the United States, nevertheless persisted in considering 
Article 57 as accurately reflecting the law governing enemy character of vessels. But the prac- 

76 



In addition, a merchant vessel though entitled to fly a neutral flag may 
nevertheless forfeit its neutral character by undertaking to perform any one 
of several services on behalf of a belligerent. In a later chapter these acts — 
generally considered under the heading of "unneutral service" — are ex- 
amined in some detail. 65 Here it is sufficient to observe that the more 
serious forms of unneutral service may so identify merchant vessels of 
neutral nationality with the armed forces of an enemy as to expose such 
vessels to the same treatment as is meted out to enemy warships. Thus 
merchant vessels of neutral nationality which take a direct part in hostili- 
ties on the side of an enemy or act in any capacity as a naval or military 
auxiliary to an enemy's armed forces not only acquire enemy character but 
are liable to the same treatment as enemy warships. 66 Further, neutral 
merchant vessels may acquire enemy character and be made liable to the same 
treatment as enemy merchant vessels if found operating directly under 
enemy orders, employment, or direction. 67 Finally, it is customary to 



tice of belligerents in both World Wars has made sufficiently clear that they are not prepared 
to refrain from the seizure and condemnation of vessels whose ownership is vested in individuals 
(or corporations) possessed of enemy character. — The attitude of the British Prize Court was 
best set forth in the following passage: 

"It is a settled rule of prize law, based on the principles upon which Courts of Prize act, 
that they will penetrate through and beyond forms and technicalities to the facts and realities. 
This rule, when applied to questions of the ownership of vessels, means that the Court is not 
bound to determine the neutral or enemy character of a vessel according to the flag she is flying, 
or may be entitled to fly, at the time of capture. The owners are bound by the flag which they 
have chosen to adopt; but the captors as against them are not so bound." The Hamborn [1918], 
7 Lloyds Prize Cases, p. 62.. 

The criteria for determining the enemy character of the owners of a vessel are considered in 
connection with the discussion of the criteria for determining the enemy character of goods 
generally (see pp. 81-4). 

65 See Chapter XI. 

66 Law of Naval Warfare, Article 501a. Also, see pp. 319-11, for a more detailed discussion. 

67 Law of Naval Warfare, Article 501b. See pp. 3x1-3 for a more detailed discussion. Paren- 
thetically, it may be noted here, though in later pages this point is developed more fully, 
that not all acts falling under the category of unneutral service result in impressing enemy 
character upon a vessel. There are certain acts of unneutral service which, when performed by 
neutral vessels, result only in a liability to seizure in the same manner as for the carriage of 
contraband or breach of blockade (see Law of Naval Warfare, Article 503d (3), (4), and also 
pp. 3x4-31). But these acts do not of themselves result in the acquisition of enemy character 
on the part of the vessel performing them, just as the acts of contraband carriage and blockade 
breach do not of themselves result in impressing an enemy character upon the vessel performing 
them. 

Now it may be contended — and with a certain merit — that the differences required by the 
traditional law in the treatment of vessels bearing an enemy character (see pp. iox-8) and the 
treatment of vessels retaining a neutral character (see pp. 347-53) are no longer very considerable. 
It is true that the treatment of cargo carried on board a seized vessel differed according to whether 
the status of the vessel was enemy or neutral, though this difference too is no longer very signifi- 
cant. Even further, although the destruction of neutral prizes following seizure is a far more 
serious measure than is the destruction of enemy vessels, the former may admittedly be destroyed 

77 



consider a merchant vessel of neutral nationality as acquiring enemy char- 
acter if it resists the exercise of the legitimate belligerent right of visit and 
search. 68 

(i) Transfer of Flag 

The imminence of hostilities or the actual outbreak of war is generally 
productive of attempts on the part of the owners of "vessels possessing 
enemy character to avoid the risk of seizure and confiscation by transferring 
such vessels to a neutral flag. It is universally acknowledged that although 
the transfer of a vessel from an enemy to a neutral flag may take place in 
accordance with the municipal law of the neutral state international law 
may nevertheless regard the transfer as fraudulent and not serving to divest 
the vessel of its enemy character. The general principle involved is clear: 
the fraudulent transfer of vessels, a matter determined by international 
law, cannot serve to defeat the rights of a belligerent. But the detailed 
application of this principle is quite another matter, and states have long 
disagreed upon the specific conditions that must be satisfied before vessels 
can be regarded as properly divested of enemy character. 

It has been observed that the traditional view maintained in this matter 
by the United States is that "a neutral national may lawfully purchase a 
private ship under a belligerent flag and thereby acquire a title to be re- 
spected by the enemy of the State of the vendor, provided the transaction 
is a bona fide one, by the terms of which no right to purchase or recover the 
vessel is reserved to the seller, and the price paid gives evidence of a reason- 
able sacrifice by the purchaser. Other considerations, such as the motives 
impelling a sale have not been deemed to be decisive of the validity of the 
transaction." 69 A substantially similar view, enphasing the bona fide 

in circumstances of exceptional'necessity. Hence, the differences in this latter respect, while 
not to be lightly brushed aside, should not be exaggerated. 

However, the significant and rather unexpected point is that in view of the increasing liability 
of enemy merchant vessels to attack (see pp. 67-70), the importance of clearly distinguishing 
between neutral merchant vessels acquiring and neutral vessels not acquiring enemy character 
becomes even more imperative than previously. For if the law may now be considered as 
permitting — under certain circumstances — the sinking without warning of enemy merchant 
vessels, special caution must be exercised in making clear precisely those vessels either possessing 
enemy character or acquiring such character by the performance of certain acts. The conse- 
quences of even a partial abandonment of the heretofore valid rule requiring warships (whether 
surface or submarine) to refrain from sinking any merchant vessels without having first placed 
passengers and crew in a place of safety are sufficiently grave to warrant a very careful discrimi- 
nation between enemy vessels, including neutral vessels acquiring enemy character, to which 
this partial abandonment applies, and neutral vessels, which may perform prohibited acts 
(e. g., contraband carriage) but which do not acquire by these actions enemy character. 

68 Strictly speaking, the act of resisting visit and search does not fall within the category of 
unneutral service, though it nevertheless results in a neutral vessel acquiring enemy character. 

69 Hyde, op. cit., pp. Z078-9, and sources cited therein. Paragraph 58 of the 1917 Instructions 
issued to the U. S. Navy declared: 

"The transfer of a private vessel of a belligerent to a neutral flag during war is valid if in 
accordance with the laws of the State of the vendor and of the vendee, provided that it is made 

78 



and absolute character of the transfer of a vessel from enemy to neutral 
ownership, has long been endorsed by Great Britain. 70 

On the other hand, the traditional practice of certain of the continental 
European states, and notably France, has been to refuse to recognize the 
validity of any transfer made from an enemy to a neutral flag in time of 
war, though treating such transfers as were made prior to the outbreak of 
hostilities as valid merely if carried out in accordance with the laws of the 
state of the vendor and vendee. 

In retrospect, it is clear that the provisions of the 1909 Declaration of 
London relating to the transfer of flag did not successfully meet the diffi- 
culties posed by these divergent practices. The relevant articles of that 
instrument provided for a distinction to be drawn between the transfer of 
an enemy vessel to a neutral flag when effected shortly before the opening 
of hostilities and transfer when effected after the outbreak of war. In both 

in good faith and is accompanied by a payment sufficient in amount to leave no doubt of good 
faith; that it is absolute and unconditional, with a complete divestiture of title by the vendor, 
with no continued interest, direct or indirect, of the vendor, and with no right of repurchase 
by him; and that the ship does not remain in her old employment." 

This provision was substantially repeated in paragraph 64 of the 1941 Instructions. There 
is no reason to believe that the above quoted provision does not still remain the position of this 
country, the United States having never endorsed the principles — discussed below — concerning 
transfer of flag provided for in the Declaration of London. As regards the transfer to a neutral 
flag before hostilities, both the 1917 and 1941 Instructions merely declared such transfer to be 
valid provided it was made in accordance with the laws of the state of the vendor and the 
state of the vendee. But this provision must be considered along with this country's endorse- 
ment — as reflected in earlier manuals — of Article 57 of the Declaration of London. Simply 
stated, this led to the position that so long as a belligerent vessel was transferred to a neutral 
flag prior to the outbreak of war, and in accordance with the municipal law of the neutral state, 
such vessel enjoyed a neutral character once war broke out. Thus the requirements demanded 
of transfer made prior to hostilities were different from, and exceedingly more liberal, than the 
requirements made for transfer during war. The present validity of this distinction must be 
doubted, however, if only for the reason that Article 57 of the Declaration of London can no 
longer be regarded as valid. If anything, it would appear that the test heretofore established 
in American practice for determining the validity of transfers made during war is equally 
applicable to transfers made immediately prior to the commencement of hostilities. 

On October 3, 1939 the Panama meeting of the Foreign Ministers of the American Republics 
resolved that the latter: "Shall consider as lawful the transfer of the flag of a merchant vessel 
to that of any American Republic provided such transfer is made in good faith, without agree- 
ment for resale to the vendor, and that it takes place in the waters of an American Republic." 
A. J. 1. L., 34 (1940), Supp., p. 11. Also see Hackworth, op. cit., Vol. VI, pp. 5x4-41. 

70 "From the British point of view, transfers of vessels during the war are not per se invalid, 
but the belligerent is entitled to inquire into the transaction in order to determine whether it 
was made in fraud of his rights and whether there has been an effective divestment of enemy 
title and an effective vesting in the neutral owner." Colombos, op. cit., p. 105. In practice, 
this has been interpreted to mean that the seller must not retain any interest in the vessel, or 
any right to repurchase or recover the vessel following the termination of the war. Still 
further, British practice forbids transfer while in a blockaded port or while the vessel is in 
transitu (though once having reached port and taken possession of by a neutral owner the 
voyage has been regarded as terminated). 

79 



instances transfer from an enemy to a neutral flag was to be considered void 
if made ' 4 in order to evade the consequences which the enemy character 
of the vessel would involve." However, for transfers made immediately 
prior to hostilities the burden of proving such a purpose was placed upon 
the captors, whereas for transfers made during the period of war the claim- 
ant was obliged to displace the presumption that transfer was made in order 
to avoid seizure. This principal test was further supplemented by a num- 
ber of related presumptions. 71 

These provisions constituted an obvious attempt to compromise differ- 
ences in state practice already noted. However, the manner in which they 
were formulated was such as to allow a considerable latitude in interpreta- 
tion, and during World War I belligerents — or at least those belligerents 
professing to follow the Declaration of London — did not hesitate to resort 
to that interpretation most nearly in accord with their traditional practice. 72 

71 Thus according to Article 55 of the Declaration, an absolute presumption of a valid transfer 
was to be made if the transfer was effected more than thirty days before hostilities and was 
absolute, complete, conformed to the laws of the countries concerned, and the former owners 
were divested both of control and of earnings. But a rebuttable presumption that the transfer 
was void resulted if the bill of sale was not found on board a vessel that lost her belligerent 
nationality less than sixty days before the opening of hostilities. 

According to Article 56 an absolute presumption that transfer — in time of war — was void 
followed if the transfer was made during a voyage or in a blockaded port, if the vendor retained 
a right of redemption or of revision, or if the requirements for a valid transfer laid down by the 
municipal law of the flag state were not observed. 

72 A rigorous interpretation of the stipulation that transfer was void if made in order to 
"evade the consequences which the enemy character of the vessel would involve" easily served 
to render wartime transfers practically impossible. Thus the position of France and Germany 
was that this injunction applied to the intentions of both the seller and the purchaser. Since 
the motives of the former are necessarily suspect it is at best an extremely difficult task for a 
claimant to establish that the transferor's motives were not to "evade the consequences" of 
enemy character, particularly when the acts held to constitute an evasion of the consequences 
of enemy character were never clarified or made the object of common agreement. — The well 
known case of The Dacia, decided by the French Prize Council in August 1915, indicated the 
French interpretation of Article 56 of the Declaration of London. The Dacia, a German merchant 
vessel purchased by an American citizen, and transferred to American registry while lying in 
an American port, was seized by a French cruiser on a voyage from Port Arthur, Texas, to 
Rotterdam. The cargo carried was destined for Bremen. Earlier, the French Government had 
notified the American Government that it would not recognize the validity of any transfer 
of German vessels lying in American ports to American registry. In condemning the Dacia, 
the French Prize Council asserted that the American owner had failed to establish — as required 
by Article 56 — that the German transferor had not sold the vessel in order to "evade the con- 
sequences" of enemy character. Even further, the Prize Council declared that a transfer could 
be regarded as valid "only if there was reason to believe that it would have been effected just 
the same had the war not occurred. . . ." For translation oiThe Dacia,sctA.J. I. L., 9 (1915), 
pp. 1015-2.6. The French Council of State, on appeal, upheld the decision of the Prize Council 
and in doing so made the same point. In effect, then, this interpretation — also made by Ger- 
many — placed an impossible burden upon claimants. In the case of The Dacia, however, the 
Prize Council did lay emphasis upon the additional circumstance that the vessel was engaged 
in a trade "for which it had been chartered when it was under the German flag, and in view 

80 



At present, then, the disparate rules governing the transfer of vessels 
from an enemy to a neutral flag remain roughly what they had been prior 
to the Declaration of London. So far as Anglo-American practice is con- 
cerned this would appear to mean that transfers effected either immediately 
prior to or following the outbreak of war will be — in principle — recognized 
as valid if made in good faith by the purchaser and if resulting in the 
complete divestiture of enemy ownership and control. However, it 
remains to be emphasized that the very circumstances normally attending 
the transfer of vessels in time of war are such that belligerents and bel- 
ligerent prize courts will subject such transfers to the most careful investi- 
gation. It also seems clear that in this process the burden of proving that 
the divestiture of enemy ownership in and control over a vessel has been 
complete and genuine rests largely upon the claimant. 73 
b. Goods (Cargoes) 

Whereas in the case of vessels the fact of ownership serves as a supple- 
mentary criterion for determining neutral or enemy character, in the case 
of cargoes ownership becomes the principal test. But although it is 
recognized that the neutral or enemy character of goods is dependent upon 
the neutral or enemy character of the owners, states have differed in the 
tests they have established for determining the enemy character of indi- 
viduals. The 1909 Declaration of London failed to resolve the traditional 
disparities in state practice, being limited to an endorsement of the cus- 
tomary rule that all goods found on board enemy merchant vessels are 
presumed to have an enemy character unless proof of neutral character is 
furnished by the owners. With respect to the central question, however, 
the Declaration merely provided that the enemy character of goods is 
determined by the enemy character of the owners, thereby selecting neither 
the "territorial" test, adhered to by the United States and Great Britain, 

of which it had been transferred to a neutral flag; such transfer to a neutral flag with the object 
of carrying on enemy trade and protecting the ship from capture cannot be valid against bel- 
ligerents." This latter point does appear to offer a clear basis for the voidance of transfer and 
to provide sufficient indication that transfer was not made in "good faith." — For the diplomatic 
correspondence on the Dacia, see U. S. Naval War College, International Law Situations, 1934, 
pp. 7-17. 

In contrast to France and Germany, Great Britain applied a liberal interpretation to Article 56 
and one that accorded with her previous practice. Thus in The Edna, [1919] — (9 Lloyds Prize 
Cases, p. 70) the Judicial Committee of the Privy Council declared that Article 56 was intended 
to prevent colorable or fictitious transfers and that the only change made by this Article was 
to place the burden of proving a bona fide transfer upon the purchaser. But the latter is under 
no obligation to establish the motives — innocent or otherwise — of the seller. 

73 It should be apparent that the task of ascertaining whether or not a transfer does satisfy 
the requirements demanded by Anglo-American practice is one suited to a court of prize and not 
to belligerent commanders undertaking visit and search. Save in exceptional circumstances 
the latter may treat the fact of transfer from an enemy to a neutral flag as sufficient cause for 
seizure, leaving the ultimate determination of the vessel's status to the prize court. 



81 



nor the "nationality" test, followed by France and other continental 
powers. 74 

It has frequently been observed that the true purpose of the belligerent 
right to seize enemy goods at sea is to prevent an opponent from retaining 
a control over any trade that will serve to augment his economy and thus 
enable him the more effectively to conduct war. From this point of view 
it is neither the possession of enemy nationality nor the subjective attach- 
ment to the cause of an enemy state that — in itself — provides sufficient 
reason for the confiscation of an individual's goods on the ground that they 
are impressed with an enemy character. Instead, it is the existence of an 
objective relationship between the trade of an individual — whatever his 
nationality or allegiance — and the territory belonging to or occupied by 
the enemy; a relationship the result of which is to subject the property of 
an individual to the control of the enemy, thereby increasing the latter' s 
potential for waging war. 

This is, at any rate, the rationale upon which Anglo-American practice 
may be said to have developed. The test for determining the neutral or 
enemy character of an individual, at least so far as the determination of the 
character of goods is concerned, is made dependent upon what is commonly 
termed the individual's "commercial (trade) domicile." 75 Even though 
of non-enemy nationality, an individual is regarded as having a hostile 
commercial domicile if he resides in territory belonging to or occupied by 
an enemy. In consequence, all goods belonging to the subjects of neutral 
states who reside and carry on trade in enemy territory bear an enemy 
character; and the same holds true for the goods belonging to the subjects 
of a belligerent, or of the belligerent's allies, resident in the territory of an 
enemy and remaining there following the outbreak of war. Conversely, 
through residence in a neutral state (or in the territory of the belligerent or 
of an ally) an individual of enemy nationality may so remove himself and 
his commercial activities from enemy territory and control as to obtain a 
neutral (or friendly) commercial domicile and to no longer warrant treating 
his property as impressed with an enemy character. 

Furthermore, it may be that a neutral subject, though residing in neutral 
territory, has an interest in a house of trade that is established and doing 
business in or from an enemy state. In this event the goods he owns as a 
result of such commercial enterprises in the enemy country are impressed 
with an enemy character, the neutral owner being considered as acquiring 
an enemy commercial domicile with respect to — though only with respect 
to — his assets in the enemy house of trade. The enemy character that is 
imputed to goods in this instance follows from the connection held to ob- 
tain between the latter and enemy territory; a relationship that is considered 

74 And, by implication, thereby sanctioning both tests. 

75 See Article 633a, Law of Naval Warfare — which follows a parallel provision found in both 
the 1917 and 1941 Instructions. 

82 



to increase the enemy's resources. It is this relationship rather than the 
actual residence of the neutral owner that is held to be decisive here. On 
the other hand, the converse situation does not hold true, for the doctrine 
of commercial domicile does not exempt from enemy character the goods of 
individuals permanently resident in an enemy country though having a 
house of trade in a neutral state. 76 Last of all, mention should be made of 
the special rule relating to articles which form part of the produce of enemy 
soil. According to American and British practice goods which are the prod- 
ucts of the soil of an enemy country and which are shipped therefrom after 



76 The above remarks constitute no more than the barest summary of the principal lines 
of development that the territorial test has taken in its application to cargoes owned by 
individual traders. To these remarks some additional observations may be appended in 
this note. — In British prize law a distinction is drawn between the acquisition of a neutral 
or friendly commercial domicile and of a hostile commercial domicile. With respect to 
the former, residence is an essential element, and although it is not possible to lay down 
a general rule covering all cases it is at least clear that the residence required must be of a 
fairly permanent character. But a hostile commercial domicile may be acquired either by 
residing and trading in an enemy state or simply by having an interest in a business estab- 
lished in hostile country. Thus in the Anglo-Mexican [1918], Lord Parker declared on be- 
half of the Judicial Committee of the Privy Council that "a neutral wherever resident may, 
if he owns or is a partner in a house of business trading in or from an enemy country, be 
properly deemed an enemy in respect of his property or interest in such business. He acquires 
by virtue of the business a commercial domicile in the country in or from which the business 
is carried on, and this commercial domicile, though it does not affect his property generally, 
will affect the assets of the business house or his interest therein with an enemy character." 
5 Lloyds Prize Cases, pp. 1 13-14. However, in the case of a hostile commercial domicile ac- 
quired by residing and trading in hostile country, enemy character is imputed to an individual's 
goods wherever situate (i. e., whether in hostile, neutral or friendly territory). Nor have 
individuals acquiring a hostile commercial domicile through residing in enemy territory been 
allowed a period of grace, upon the outbreak of hostilities, in which to abandon their acquired 
domicile (though such abandonment may be taken by an unequivocal act, following which the 
goods of neutral individuals will not be considered as any longer impressed with enemy character 
and liable to capture). But in the case of neutral subjects resident in neutral territory and 
partners in an enemy house of trade it is only the assets owned as a result of the interest in the 
enemy house of trade that have been considered impressed with enemy character. Furthermore, 
in this instance practice has been to allow neutral subjects a reasonable period of time in which 
to break off their enemy interests. Indeed, it is only by a kind of projection of the concept of 
commercial domicile that it is used to cover the case of being a partner in an enemy house of 
trade though without being actually resident in hostile country. 

Where the ownership of cargoes (and vessels) is vested in a corporate entity rather than in 
an individual the application of the territorial test must of necessity undergo certain modifica- 
tions, and here again it is British practice that has pointed the way. It is clear, to begin with, 
that a corporation will be impressed with an enemy character, and its property rendered liable 
to seizure, if its place of incorporation is within hostile country. Nor will the imputation of 
enemy character to a corporation thus having an enemy nationality be affected by the fact that 
those who own or control the enterprise are made up largely of neutral nationals residing in 
neutral territory. In addition, a corporation, even though its place of incorporation is within 
neutral territory, may be considered as possessing an enemy character if it is substantially owned 
and controlled by individuals who themselves bear enemy character — this at least according 
to the British view. 

399334—57 7 83 



the outbreak of war are impressed with an enemy character even though the 
owner of the goods may be domiciled or resident in a neutral country. 

In contrast with the territorial test is the test traditionally applied by 
France and other continental states which emphasizes the nationality of 
the owner of goods as the decisive criterion for determining the neutral or 
enemy character of cargoes. In applying the nationality test goods be- 
longing to the subjects of an enemy state are impressed with an enemy 
character, despite the fact that the owners may be permanently resident in 
neutral territory; and if found on board enemy merchantmen such goods 
are always considered liable to capture. Conversely, goods owned by the 
subjects of a neutral state normally do not bear enemy character — again 
according to the nationality test — despite the fact that the owners may be 
residing in enemy territory. 77 



77 It is now generally recognized, however, that the experience of the two World Wars has 
demonstrated that the traditional divergence between the territorial and the nationality test 
has lost a substantial measure of its former significance. In practice, many of the belligerents 
refrained from a rigid adherence to either test, but sought to effect a combination of both. 
Nor can it be said that a belligerent acts in violation of international law by applying both 
tests, should the particular circumstances attending a war render such behavior expedient. 
See, for example, Hyde, op. cit., pp. Z090-1. At the same time, the importance that may be 
attached to belligerent practice in this respect during the two World Wars is difficult to assess, 
since much of the "evidence" that belligerents are in fact abandoning an exclusive adherence to 
either the territorial or the nationality tests has been found in belligerent "trading with the 
enemy" acts. At the outbreak of war every belligerent is at liberty to prevent its subjects, 
as well as other individuals residing within its territory, from carrying on any intercourse — 
commercial or otherwise — with the enemy. Such prohibition may extend not merely to all 
persons residing in the enemy state but to enemy nationals residing abroad in neutral states and 
even to individuals — regardless of nationality and residence — found to have an association with 
the enemy. During World War I Great Britain's Trading With the Enemy Act authorized 
the Government to forbid trade not only with all persons residing in an enemy state but also 
with any person not resident in enemy territory whenever such prohibition appeared expedient 
"by reason of the enemy nationality or enemy association of such persons." In accordance 
with this Act so-called "black-lists" were made up containing the names of individuals, many 
of them residing in neutral states, with whom trading was deemed unlawful. As a neutral 
the United States protested against the British black-lists, though upon becoming a belligerent 
it resorted to similar measures. France, on the other hand, in addition to forbidding trade 
with enemy subjects wherever resident also prohibited trade with non-enemy subjects residing 
in enemy territory. — In World War II the belligerents once again resorted to similar measures 
in their trading with the enemy legislation. For the text of Great Britain's Trading With 
the Enemy Act, 1939, see A. J. I. L., 36 (194Z), Supp., pp. 3-11. The United States' Trading 
with the Enemy Act, 1917, is given in A. J. I. L., 11 (1918), Supp., pp. Z74 ff., and the World 
War II amendments in A. J. I. L., 36 (1942.), Supp., pp. 56-8. In effect, then, these states 
adopted both the territorial and the nationality tests for determining enemy character in their 
trading with the enemy legislation. Nevertheless, such legislation. is mainly a matter of 
municipal law rather than of international law; it places restraints upon the subjects of the 
belligerent and all other persons residing within its territory and provides appropriate penalties 
in the event these restrictions are broken. There is nothing to prevent a belligerent from taking 
such measures. Nor does there appear any solid basis in international law for neutral protests 
against these measures simply for the reason that the belligerent has forbidden its subjects 

84 



(i) Transfer of Goods at Sea 

Although the character of goods seized at sea is normally dependent 
upon the character of the owners, difficulties may frequently arise in de- 
termining who are the true owners at the time of seizure. 78 It is generally 
acknowledged that with respect to goods sold prior to, and without 
anticipation of, hostilities, the question whether or not ownership in the 
goods has passed from seller to buyer at the time of seizure is one that may 
be determined either in accordance with the municipal law of the parties 
involved in the transaction or in accordance with the municipal law of the 
captor. 79 

Quite different considerations 80 govern the transfer of goods when made 
after the outbreak of war or in contemplation of hostilities. Were the 
municipal law governing the passing of property to remain applicable to 
these latter cases of transfer, and to determine the neutral or enemy char- 
acter of goods, risk of confiscation would be rendered negligible so long as 
ownership in goods being shipped from neutral to enemy or from enemy to 
neutral could remain vested in neutral hands. In the case of goods being 

from trading with individuals, residing in neutral territory, known to be either of enemy 
nationality or to have enemy associations. To this extent American protests against the 
British "black-lists" during World War I appear misplaced. Even further, Great Britain was 
well within her lawful rights as a belligerent in taking other discriminatory measures against 
the vessels belonging to individuals residing in neutral territory though placed on the statutory 
lists, e. g., in refusing to allow such vessels to be insured by British companies or in denying 
to them the facilities of British controlled ports. But it should be emphasized that the ' 'enemy 
character" imputed to individuals in trading with the enemy legislation has been relevant 
only for those purposes already noted, not for the purpose of determining whether the goods 
of such individuals are impressed with an enemy character and therefore liable to seizure as 
lawful prize. In this latter sense Great Britain and the United States have yet to depart from 
the territorial test, though it is true that the scope of this test has been limited by virtue of 
other belligerent measures. 

78 And it is ownership in the goods at the time of seizure that is decisive in determining their 
neutral or enemy character. The right of belligerents to confiscate cargoes (and vessels) 
thus owned by individuals or corporations endowed with enemy character is not affected by 
any special rights that may be attached to the seized enemy property, and recognized by muni- 
cipal law, e. g., mortgages, liens, etc. On this point the practice of prize courts is uniform, 
it being recognized that to allow such special claims by neutrals would doubtless render the 
belligerent right to seize enemy property at sea of very little value. 

79 The captor may therefore determine the question of ownership by the law of sale applicable 
in his own state. Generally speaking, the delivery of goods on board a vessel is normally 
considered as equivalent to their delivery to the consignee, the latter thereby accepting the risk 
and the right to dispose of the goods. But this need not be the case, and the decisions of 
prize courts — particularly the British, which apply the English law governing the sale of 
goods — are clear that ownership can be determined only by an inquiry into the intentions of 
the parties and the terms governing each particular contract for the sale of goods. For an 
enlightening commentary on some of the recent problems arising in English practice, see Stone, 
op. cit., pp. 469-70, 475-7. 

80 Here again it is British prize decisions that provide the substantial basis for the remarks 
to follow, though this practice is shared in varying degrees by other states and particularly 
the United States. 

85 



transferred from a neutral to an enemy this result is prevented by the 
established practice of considering such goods as impressed with enemy 
character during the entire period of transit. Nor does it matter that 
according to the strict terms of the sale the property is not to pass into 
enemy hands until the time delivery has been made and actual possession 
of the goods has been taken. 81 In addition, there is the principle governing 
converse cases involving transfer of propeity from enemy to neutral, and 
according to which a belligerent may seize such goods while in transit — 
although title to the goods has already passed to the neutral — if the transfer 
is deemed to be fraudulent, i. e., entered into for the purpose of defeating 
the rights of the captor. 82 This is almost always considered to be the case 
if transfer of title to enemy goods is carried out once the goods ale already 
at sea. 83 But quite apart from this special case the transfer of title to goods 
in transit from enemy to neutral, howevei clear, cannot opeiate against 
the captor if fraudulently made. And while it may be open to the neutral 
claimant to disprove any presumption o f fraud against the captor the 
practical effect of the foregoing rule, as well as the rule governing the 
transfer of goods from neutral to enemy, is to regard all goods in transit — ■ 
whether from neutral to enemy or from enemy to neutral — as enemy 
property. 84 

It should be made clear, ii? conclusion, that the preceding rules are always 
relevant to the transfer of title in goods found on enemy vessels. The extent 
to which they will prove applicable to the transfer of goods on neutral ves- 
sels must depend, of course, upon whether or not the rule of "free ships, free 
goods" is being observed by belligerents. 85 
2. Enemy Property Exempt From Seizure 

a. Enemy Vessels at the Outbreak of War 

During the course of the nineteenth century the practice gradually took 
root of granting belligerent merchant vessels caught in enemy ports at the 



81 Of course, if title to goods has already passed to the enemy owners then obviously no 
problem arises with respect to their character. 

82 Again it may be noted that no difficulty arises with respect to the passing of property 
from enemy to neutral if the title to the property remains in the vendor at the time of seizure — 
the goods evidently retain their enemy character. It is only when a neutral title has been 
perfected that any problem arises and when the principle that transfers of property cannot 
be made in order to defeat the rights of the captor becomes applicable. 

83 Law of Naval Warfare, Article 633b. Article 60 of the Declaration of London, the only 
provision concerning the transfer of goods upon which the drafters were able to agree, provided 
that the "enemy character of goods on board an enemy vessel continues until they reach their 
destination, notwithstanding an intervening transfer after the opening of hostilities while the 
goods are being forwarded." 

84 But once the neutral buyer has taken actual possession of the goods through their delivery 
the transit is complete and the belligerent cannot seize them — at least not on the basis of the 
rules presently considered — unless it can be shown that the enemy seller has nevertheless re- 
tained an interest in or control over the property. 

88 As to the present status of the latter rule, see pp. 99-102.. 

86 



outbreak of war a period of grace in which to depart unmolested . 83 Exemp- 
tion from seizure also was frequently accorded to belligerent merchant ves- 
sels which left their last port of departure before the outbreak of war and 
when encountered on the high seas were unaware that hostilities had 
broken out. 87 Hague Convention VI (1907), Relative to the Status of 
Enemy Merchant Ships at the Outbreak of Hostilities sought to codify this 
practice, and Article 1 of that Convention provided that in the event a mer- 
chant ship belonging to one belligerent is at the commencement of war in 
an enemy port "it is desirable that it should be allowed to depart freely, 
either immediately, or after a reasonable number of days of grace, and to 
proceed, after being furnished with a pass, direct to its port of destination 
or any other port indicated . " A similar rule was provided for a belligerent 
merchant ship which, having left its last port of departure before the out- 
break of war, entered a port belonging to the enemy in ignorance of the 
fact that hostilities had broken out. Merchant ships unable to leave an 
enemy port within the allotted period of grace, owing to circumstances of 
force majeure, were not to be confiscated, but could eithei be detained, with- 
out payment of compensation though subject to restoration at the conclu- 
sion of hostilities, or requisitioned, on payment of compensation. Belligei- 
ent merchant vessels met at sea and ignorant of the outbreak of war, having 
left their last port of departure before war's outbreak, could be seized by an 
enemy and either detained or requisitioned in the same manner as vessels 
unable to leave an enemy port. Confiscation was, in any event, forbidden. 
Finally, the Convention expressly excluded from the benefit of its provisions 
those merchant ships whose build indicated that they were intended for 
conversion into warships. 88 

A large number of states, including the United States, failed to ratify 



86 A review of nineteenth century opinion and practice with respect to the status of enemy- 
merchant vessels at the outbreak of war is given in U. S. Naval War College, International Law 
Topics, 1906, pp. 46-65, where it is concluded that the exemption granted enemy vessels should 
be conditioned upon a strict reciprocity of treatment, that it should be subject to the protection 
of a belligerent's military interests, and that it should not extend to private vessels suitable 
for warlike use. — It should be observed that prior to the middle of the last century the practice 
of belligerents had been to seize and confiscate enemy vessels caught in belligerent ports at the 
outbreak of hostilities. And there were a number of instances of states placing an embargo 
upon the vessels of a foreign state in anticipation of war with the latter. 

87 Such vessels, if destined for an enemy port, were usually allowed to enter such port, dis- 
charge their cargo, and depart. On the other hand, if seized they were generally not subject 
to confiscation but instead to detention or to requisition upon compensation. 

88 The foregoing is a brief summary of Articles 1, i, 3 and 5 of Hague VI. Article 4 provided 
that in all instances enemy cargo was likewise liable to detention, subject to restoration after 
the termination of war without compensation, or to requisition, on payment of compensation. 
It should be observed that the exclusion of "potential auxiliary cruisers" from the protection 
of the Convention seriously limited its applicability from the very start. Even then, the only 
strict obligation laid down by the Convention was that which forbade confiscation. 



87 



the Convention, however. 89 In addition, among those states ratifying 
Hague VI several did so only after attaching certain reservations. During 
World War I observance of the Convention by the contracting parties was 
far from uniform and in consequence of this failure to secure ' 'either uni- 
formity or liberality of treatment" Great Britain denounced Hague VI in 
192.5 . 90 Following the outbreak of hostilities in 1939 neither Great Britain 
nor France granted any days of grace to enemy merchant vessels caught in 
their ports. Instead, such vessels as were found in Allied ports — or en- 
countered upon the high seas — were held liable to seizure and subsequent 
confiscation. 91 

At the present time, it must be considered very doubtful that in the 
absence of specific obligations imposed by treaty a belligerent is required 
by customary international law to accord any favorable treatment — in the 
form of exemption from seizure and confiscation — to enemy merchant 
vessels found in its ports at the commencement of hostilities. Despite the 



89 The failure of the United States to ratify the Convention was not due to a lack of support 
for its purposes. On the contrary, one of the chief complaints made by this country was that 
the Convention did not provide sufficient guarantee that enemy vessels would be permitted to 
depart from the ports of the other belligerent upon the outbreak of war. 

90 A review of World War I practice is given by A. P. Higgins, "Enemy Ships in Port at the 
Outbreak of War," B. Y. I. L., 3 (19Z3-Z4), pp. 55-78. Of the British denunciation of Hague 
VI, Colombos (pp. cit., p. 138) writes that: "This development in the law is to be regretted. 
The provisions contained in the Hague Convention appear substantially just and equitable 
and deserve to be followed on their own merits." The British decision to denounce Hague VI 
was very largely a result of the decision rendered by the Judicial Committee of the Privy Council 
in The Blonde and Other Vessels, [19x1] — (10 Lloyds Prize Cases, pp. 148 ff.), where Lord Sumner 
held that during the war of 1914-18 Great Britain had acted on the basis that Hague Convention 
VI was in effect. This being so, Article 2. of the Convention — forbidding confiscation — was 
regarded as obligatory even though Article 1 — concerning the granting of days of grace — was 
considered as only optional. ("Ships which find themselves at the outbreak of war in an 
enemy port shall in no case be condemned if they are not allowed to leave, or if they unavoidably 
overstay their days of grace, but it would be better that they always be allowed to leave, with 
or without days of grace.") Thus the argument that the prohibition in Hague VI against 
confiscation was dependent upon a prior reciprocal agreement between belligerents on the days 
of grace to be granted enemy merchant vessels in which to depart from belligerent ports was 
expressly rejected. Such an agreement had not been reached between Great Britain and 
Germany in 1914 and consequently each state detained the merchant vessels of the other. 
The effect of the decision in The Blonde was to require the British Government either to restore 
the detained German vessels to their owners or to requisition the vessels on payment of compen- 
sation. 

91 France denounced Hague VI in 1939. Other allied states, e. g., Canada, followed the 
same pattern and seized all German ships either found in their ports or encountered upon the 
high seas without granting any period of grace. Nor did these states refrain from confiscating 
the seized vessels. However, it is true that a number of belligerents retained the provisions 
of Hague Convention VI in their prize codes. Thus Article 18 of the German Prize Law Code 
of 1939 declared that the provisions of the Convention "remain unaffected." But Article 18 
was interpreted as being conditioned only upon reciprocal treatment by Germany's enemies. 
Italy also retained the provisions of Hague VI in her prize code of 1938 and offered to apply 
these provisions upon becoming a belligerent in 1940, though nothing came of the offer. 

88 



fairly widespread practice of belligerents in the years prior to World War I 
of granting either a period of grace or, in any event, exemption from 
confiscation, it is difficult to accept the occasional assertion that this 
practice had hardened into a rule of customary law by 1914. 92 A bel- 
ligerent is, of course, at liberty to refrain from resorting to its customary 
right to confiscate enemy vessels found in its ports at the commencement 
of hostilities, and to date the United States has chosen to follow the policy 
of requisitioning such vessels on payment of compensation. 93 Neverthe- 



92 This was also the opinion of the British Prize Court in The Pomona [1941], where Lord 
Merriman held that in the absence of reciprocal agreement there was no rule of international 
law which exempts from condemnation an enemy ship found in a belligerent's port at the 
outbreak of war. See Annual Digest and Reports of Public International Law Cases, 1941-42., 
Case No. 159, pp. 509-14. The judgment in The Pomona rejected the contention put forward 
by the claimants that the provisions of Hague VI were merely declaratory of established cus- 
tomary rules of international law. This contention, shared by a number of writers, has been 
considered as receiving some support from the preamble to Hague VI which stated that the 
protection of operations undertaken in good faith and in process of being carried out before 
the outbreak of hostilities was "in accordance with modern practice." Hyde (pp. cit., pp. 
1045-53), i fl a review of the subject declares that while there is no obligation to grant a period 
of grace, in the absence of treaty, "Provision for the detention or requisition on compensation, 
of enemy vessels in port, in lieu of confiscation, is a mark of respect for private property which 
should enjoy universal approval." Judicial opinion in the United States, although in general 
accord with this view, has nevertheless refrained from declaring that seizure and confiscation 
would be contrary to customary international law. In Littlejohn v. United States, (1916), 
2.70 U. S. 2.15. p. ZZ5, the Supreme Court stated that: "In the absence of convention every 
government may pursue what policy it thinks best concerning seizure and confiscation of 
enemy ships in its harbors when war occurs." 

With respect to enemy merchant vessels which left their last port of departure before the 
outbreak of war, and are encountered at sea, there seems little question but that they are liable 
to seizure and confiscation. Even Hague Convention VI exempted them from confiscation 
only if "still ignorant that hostilities had broken out." Developments in communications 
render such ignorance highly unlikely today. 

93 The United States upon becoming a belligerent in 1917 did not grant to enemy merchant 
vessels any period of grace in which to depart freely from American ports. Nevertheless, this 
country acted in substantial accord with the injunction contained in Article 2. of Hague Con- 
vention VI by refraining from confiscation and by applying instead the principle of requisition. 
On May iz, 1917, Congress authorized the President to take "immediate possession and title 
of" any enemy vessel within ports under American jurisdiction, and "through the United 
States Shipping Board, or any department or agency of the Government, to operate, lease, 
charter, and equip such vessel in any service of the United States, or in any commerce, foreign 
or otherwise." A decade later Congressional provision was made, through the Settlement 
of War Claims Act, for compensating the owners of the requisitioned enemy merchant ships. 
See Hackworth, op. cit., Vol. VI, pp. 57Z-6. Also Edwin Borchard, "The German Ship Claims," 
A. J. I. L., Z5 (193 1), pp. 101-7. 

During World War II a quite different situation arose owing to the fact that foreign mer- 
chant vessels — both belligerent and neutral — lying idle in American ports were forcibly acquired 
prior to the entrance of the United States in the hostilities. The Idle Foreign Vessels 
Act, signed by the President on June 6, 1941, authorized the President — until June 30, 
194Z — to purchase, requisition, charter, requisition the use of, or take over the title 
to, or the possession of, any foreign merchant vessels lying idle within the jurisdiction of the 

89 



less, a policy either of requisition or of detention, while within the dis- 
cretion of each state, is not demanded by customary international law. 
Even clearer is the absence of any rules granting either a period of grace or 
exemption from confiscation to belligerent civil aircraft found in the 
territory of an enemy upon the outbreak of hostilities. 94 
b. Postal Correspondence 

Prior to the conclusion of Hague Convention XI (1907) no general rule 
existed granting postal correspondence special exemption from seizure. It 
is true, however, that during the nineteenth century a number of treaties 
were concluded which provided that in the event of war between the 
contracting parties the mail boats as well as the postal correspondence of 
the belligerents were to be regarded as immune from seizure. With respect 
to the postal correspondence carried on board neutral vessels, there are a 
number of impressive precedents that can be drawn from nineteenth century 
practice indicating a widespread disposition toward the granting of special 
treatment to mails. Not infrequently belligerents exempted neutral mail 
bags from search; and even when neutral vessels were seized for carriage of 
contraband the mail on board such vessels was often forwarded unopened. 95 

At the second Hague Conference in 1907 the problem of postal corres- 

United States, the Philippine Islands and the Canal Zone, and which were deemed to be neces- 
sary to the national defense. The Act further provided that just compensation must be paid 
the owners of such vessels, and specified a procedure for insuring this result. (For similar 
action by a number of South American states, see Hackworth, op. cit., Vol. VII, pp. 545-9.) 

Although at the time the Idle Foreign Vessels Act was passed the United States had openly 
abandoned any pretense of conforming to the duties imposed by international law upon neutral 
states, this country nevertheless retained the formal status of a neutral (see pp. 197-8). Hence 
there is little point in considering the action from the standpoint of the powers a belligerent 
may exercise with respect to both enemy and neutral vessels found within its ports. Instead, 
the measures taken may simply be regarded as the exercise of the generally acknowledged right 
of a state to assume control — subject to compensation — over any property found within its 
jurisdiction, when such control is required for a public purpose. In this particular instance 
the purpose was that of national defense. And in a review of the Act one writer observed: 
"It is generally admitted that a government has supreme sovereign right of control of all 
persons and property within its jurisdiction and may exercise this right whenever necessary to 
preserve its independence. The exercise of this right in time of peace is generally under the 
doctrine of eminent domain, that is, the taking of property for a public purpose upon the pay- 
ment of just compensation judicially determined. It is submitted that this doctrine is applicable 
whether the nation is at war or at peace." L. H. Woolsey, "The Taking of Foreign Ships 
In American Ports," A. J. I. L., 35 (1941), p. 50Z. Also see, pp. 348 (n). 

94 Spaight (pp. cit., pp. 397-8) is of this opinion, which appears correct. 

95 For a brief review of nineteenth century practice, U. S. Naval War College, International Law 
Topics, 1906, pp. 88-96. A more extensive review, carried through World War I, is given in 
U. S. Naval War College, International Law Situations, 1928, pp. 40-72.. The case for exempting 
postal correspondence found on board neutral vessels is obviously a much stronger one — as seen 
from nineteenth century practice — than is the case for according special treatment to mail found 
on board enemy vessels. Even so, the opinion that customary law accorded no special exemption 
to postal correspondence, but instead regarded it in the same manner as other merchandise, is 
believed to be correct. 

90 



pondence was subjected to conventional regulation, Articles i and 2. of 
Hague Convention XI providing as follows: 

Article 1. The postal correspondence of neutrals or belligerents, 
whatever its official or private character may be, found on the high 
seas on board a neutral or enemy ship, is inviolable. If the ship 
is detained, the correspondence is forwarded by the captor with 
the least possible delay. 

The provisions of the preceding paragraph do not apply, in case 
of violation of blockade, to correspondence destined for or pro- 
ceeding from a blockaded port. 

Article 2.. The inviolability of postal correspondence does not 
exempt a neutral mail ship from the laws and customs of maritime 
war as to neutral merchant ships in general. The ship, however, 
may not be searched except when absolutely necessary, and then 
only with as much consideration and expedition as possible. 96 
From a formal point of view it must probably be concluded that these 
provisions remain binding today upon the parties to Hague Convention 
XL 97 On the other hand, it is difficult to avoid the conclusion that the 
events of the two World Wars have reduced the significance of these pro- 
visions almost to a vanishing point. As between belligerents the Con- 
vention presupposes that enemy vessels will be seized and not sunk without 
warning. In both World Wars the destruction of the postal correspondence 
of belligerents formed only one of the incidental effects of a policy of 
unrestricted warfare waged against enemy merchant vessels. 98 

As between belligerent and neutral it soon became apparent during the 
1914-18 War that the varying interpretations placed upon Article 1 of 
Hague XI were — for all practical purposes — irreconcilable. In principle, 



96 It is clear that the inviolability granted is to postal correspondence, not to vessels. Thus 
the liability of enemy mail boats to seizure remains unaffected by the Convention. Similarly, 
the liability of neutral mail ships to seizure for any of those acts a belligerent has a right to 
prevent when undertaken by neutral vessels — contraband carriage, blockade breach, unneutral 
service — also remains unaffected, save for the qualification that search of neutral mail ships 
should be undertaken only when "absolutely necessary" — a phrase that seems to have remained 
unclear as judged from the context in which it is used. It does appear though that Article x 
refers to privately owned neutral mail ships, not to mail ships of a public character. 

97 Technically the Convention was not operative in World War I since a number of the bellig- 
erents, and particularly Russia, had never ratified it. Hague XI, as the other treaties in this 
series, contained the general participation clause. But in neither War did the belligerents 
indicate that the Convention was not regarded as operative for that reason. 

98 The destruction of Allied mail boats without warning by German submarines was initiated 
almost at the start of World War I. In general, the German conduct of submarine warfare 
against enemy merchant vessels — and, for that matter, neutral ships as well — requires no 
further comment with respect to the German record in meeting the requirements of Articles 1 
and 2. of Hague XI. As to the Allied record, there is little information regarding the disposition 
made of mail found on board seized enemy vessels, though it is hardly hazardous to assume 
that such postal correspondence was not considered "inviolable." 

91 



agreement proved wanting both as to the meaning of "postal correspond- 
ence," considered as inviolable, and the construction to be given the phrase 
"found on the high seas." The initial neutral position, as might be ex- 
pected, was to insist that postal correspondence be understood to refer to 
all sealed envelopes, regardless of contents." In turn, the injunction of in- 
violability was interpreted as forbidding the opening of sealed mails for any 
reason, an interpretation that would evidently exclude application of the 
principle of contraband to the mails. Still further, the neutrals contended 
that the scope of Article i of Hague XI extended inviolability to postal cor- 
respondence on board neutral vessels, even after such vessels had been 
seized and conducted into belligerent ports (and particularly if merely di- 
verted into belligerent ports for the purpose of searching the cargo). In 
opposition to the foregoing, belligerents insisted that "postal correspond- 
ence" did not include contraband materials, and refused to regard letters 
containing such materials as "genuine" correspondence entitled to receive 
special protection. Thus bonds, stocks, securities, checks and money 
orders were considered, among other articles, as constituting contraband 
merchandise which, if destined to neutral territory, a belligerent had the 
right to seize even though contained in sealed correspondence. This claim 
to apply the principle of contraband to the mails was accompanied by the 
further assertion of the right to search neutral mail bags and the contents 
contained therein, whether at sea or following diversion to a neutral port. 1 



99 It has always been understood that the inviolability granted to postal correspondence in 
Hague XI does not extend to parcels or packages sent by parcel post. 

1 The correspondence occasioned between neutral and belligerent — and particularly between 
the United States and Great Britain — over interference with mails is reviewed in Hackworth, 
op. cit., Vol. VI, pp. 6o8-xx. As judged by both the actual wording of Article i of Hague XI, 
and the known intention of the drafters, it is difficult to deny the force of the initial neutral 
position. Quite briefly, the inviolability of postal correspondence guaranteed in Article i 
meant that sealed envelopes could neither be opened nor their contents seized nor censored in 
any way by belligerents. It may of course be asked why prospective belligerents were prepared 
to grant such a substantial concession for future conflicts. In part, the answer is to be found 
in the fact that the attention of the drafters was concentrated largely upon the effect that new 
means of communication would have upon the continued importance of the mails in transmitting 
intelligence of value to an enemy. It was thought that the importance of mails as a means 
for conveying intelligence would prove small enough to warrant the concessions made in 
Hague XL In part, the answer is to be found in an underestimation of the possible importance 
of the mails as a means for conveying contraband merchandise of value to an enemy. But 
despite these assumptions, which later proved to be largely misplaced, Article i must be seen 
as part of the compromise between the conflicting interests of neutral and belligerent — and the 
devitalization of Article i of Hague XI must therefore be seen as only one rather limited develop- 
ment in the much larger process whereby belligerents have severely restricted, if not invalidated 
entirely, traditional neutral rights. Thus it is, at best, misleading to argue, as did the Inter-. 
American Neutrality Committee in its recommendation of May 31, 1940 on the inviolability of 
postal correspondence (/4. /. I. L., 34 (1940), Supp., pp. 135-9), t ^ iat by Article 1 of Hague XI 
the recognition of the inviolability of postal correspondence "was made necessary in order to 
gi\e the greatest possible scope to the right of immunity and privacy of postal communications, 
even in time of war, and in view of the grave injuries resulting from the examination of corre- 

92 



Whatever the respective merits of these opposed positions, both World 
Wars provide abundant evidence that belligerents are not prepared — in any 
event — to exempt mails from the application of the principle of contraband. 
Nor, for that matter, have neutrals been either united or consistent in 
adhering to their initial position that the inviolability of mails must be 
interpreted as forbidding the opening of sealed envelopes whatever the 
contents of the latter. 2 But once it is admitted that the principle of 
contraband applies to postal correspondence it is obviously incongruous 
to deny belligerents the right to open and scrutinize mail whose ulti- 
mate destination may be to enemy territory; for without this right 
there can be no meaningful application of the principle of contraband to 
the mails. No less incongruous is the recognition of the belligerent 
right to divert neutral merchant vessels into port in order to conduct search 
for contraband among the cargo and the denial of the same right of diversion 
for the purpose of screening postal correspondence. 3 

spondence, which injuries are unjustly disproportionate to the military advantages derived 
from the seizure of any contraband found in this correspondence ..." This may reflect the 
viewpoint of neutrals, but it is clear that belligerents did not consider the military advantages 
disproportionate to the injuries inflicted. Nor, apparently, did the Committee so believe since 
it went on to declare "that the principle of inviolability, by its nature and object, may be 
completely applied only to the protection of epistolary correspondence, properly so called, and 
may not be extended to protect the transmission of goods or things of value ordinarily sent by 
postal means ..." Yet this concession to belligerent interests, by conferring inviolability 
only upon "epistolary correspondence," and thus excluding postal correspondence containing 
goods or things of value, has no evident foundation in the wording of Article i. 

2 As a neutral the United States conceded in 1916 that the principle of contraband was 
applicable to the mails by declaring that letters containing articles of merchandise — understood 
to include stocks, bonds, coupons and similar securities, money orders, checks, drafts, notes 
and other negotiable instruments — were liable to seizure by belligerents. 

3 In reply to an American protest of December 7.7., 1939, that British authorities had removed 
from American and other neutral ships American mails addressed to neutral countries, and 
had opened and censored sealed letter mail sent from this country, particularly after having 
compelled neutral vessels to call at designated British control bases, the British Government 
declared (January 16, 1940) that "in the case of merchandise, His Majesty's Government are 
entitled to ascertain if it is contraband intended for the enemy or whether it possesses an inno- 
cent character, and it is impossible to decide whether a sealed letter does or does not contain 
such merchandise without opening it and ascertaining what the contents are." cited in Hack- 
worth, op. cit., Vol. VI, pp. 610-1. In commenting upon this exchange Clyde Eagleton has 
noted that: "If . . . the principle of contraband is to be applied to the mails, it makes little 
difference whether they are searched upon the high seas or in port. It is not the fact that they 
have come into port, willingly or unwillingly, and therefore under British jurisdiction, which 
gives to the British Government the claim to search mails; it is the admission that mails may 
have a contraband character which gives the authority to search, whether upon the high seas 
or in port, and to seize contraband contained found therein ... At this point, the debate 
ceases to be one of inviolability of mails; it now becomes part of the controversy over visit, 
search, and seizure of contraband goods." "Interference With American Mails," A. J. I. L., 
34 (1940), pp. 317-9. Eagleton's conclusions are reflected in Hyde's (op. cit., p. 1979) comment 
that the "real basis" of the American complaint "was the British action that caused mails 
on board of neutral ships, and having an immediate or direct neutral destination, to be carried 

93 



Nor has the belligerent's position been limited only to the assertion of a 
right to prevent contraband merchandise from being sent to an enemy- 
through the mails. The much broader claim has been made of a right to 
screen all postal correspondence carried on board neutral vessels entering 
belligerent ports — whether voluntarily or involuntarily — with a view to 
the removal of any materials or information which is judged as providing 
some assistance to an enemy in the conduct of war. 4 Goods of enemy 
origin as well as of enemy destination have been seized. Information 
destined to an enemy and instructions sent out by the latter to its agents 
abroad have been censored. 5 In these circumstances, it need hardly be 
pointed out that the "inviolability" of postal correspondence, even though 
still proclaimed by belligerents, no longer retains its former meaning. In 
effect, postal correspondence has been made subject — at least when judged 

into belligerent ports and there be subjected to a rigid censorship. It was the abuse of a bellig- 
erent privilege revealed in the method by which it was applied which was the chief ground for 
objection." On this view, the issue is no longer the "inviolability" of mails but the methods — 
e. g., diversion into port — a belligerent uses in preventing "letter mail that might by reason 
of its contents or character be fairly assimilated to contraband from reaching the enemy." 
On diversion of neutral vessels generally, together with related problems, see pp. 338-44. 

4 Thus in the "long distance" blockades imposed against Germany in both World Wars (see 
pp. 305 ff.) Great Britain and her Allies made liable to detention (and later to seizure) all goods 
of enemy origin. In practice, the control exercised over enemy exports was employed as a 
means for screening outgoing postal correspondence. During World War I the "blockade" 
system — whose legal basis rested upon the right of reprisal — finally required all neutral merchant 
vessels sailing to or from neutral ports providing access to enemy territory to call at British or 
Allied ports. Failure to do so resulted in a liability to seizure. Once in British ports the 
mail carried on board was subject to censorship. During World War II, the Order in Council 
of July 31, 1940 (see pp. 313-5) resulted in an even tighter control over postal correspondence 
carried to or from neutral ports providing access to the enemy. In consequence, many neutral 
vessels ceased carrying any mails, and for those vessels that continued to do so "mailcerts" 
were introduced as a part of the navicert system. 

5 It should be noted that the term "censorship," frequently used in diplomatic interchanges 
as well as in academic discussions over belligerent interference with mails, has partially con- 
fused the relevant issues due to its ambiguous use. More often than not it has been used as a 
general term to indicate any form of belligerent interference with mails regardless of the specific 
objective. But belligerent censorship of mails in order to prevent the import to, or export 
from, an enemy of merchandise is a quite different matter than the exercise of censorship in 
order to prevent the enemy transmission of information of a political or military nature. In 
practice, belligerents have sought to prevent the latter as well as the former, and in the British 
reply of January 16, 1940 to the American note of December zz, 1939, regarding interference 
with mails on neutral ships, it was observed: "Quite apart from transmission of contraband, 
the possibility must be taken into account of the use of the letter post by Germany to transmit 
military intelligence, to promote sabotage and to carry on other hostile acts. It is in accordance 
with international law for belligerents to prevent intelligence reaching the enemy which might 
assist them in hostile operations." Cited in Hackworth, op. cit., Vol. VI, p. 62.1. As judged 
by Article 1 of Hague XI this last contention has an even more doubtful basis than the claim to 
apply the principle of contraband to the mails. For while the drafters of Hague XI perhaps 
paid insufficient attention to the possibilities of using the mails for contraband carriage, a good 
deal of attention was devoted to the possibility of using the ordinary mails for conveying 

94 



by recent practice — to practically the same restrictions that belligerents 
have imposed upon neutral commerce generally in time of war. 6 

c. Coastal Fishing Boats and Small Boats Engaged in Local Coastal 

Trade 
Article 3 of Hague XI provides that: 

Vessels used exclusively for fishing along the coast or small 
boats employed in local trade are exempt from capture, as well as 
their appliances, riggings tackle, and cargo. 

They cease to be exempt as soon as they take any part whatever 
in hostilities. 

The contracting powers agree not to take advantage of the 
harmless character of the said vessels in order to use them for 
military purposes while preserving their peaceful appearance. 
The exemption from seizure accorded to coastal fishing boats is founded 
upon the conviction that considerations of humanity warrant the absence 
of belligerent interference with a class of men normally felt to be both 
inoffensive and of no material importance to the military effort of an 
enemy. Their immunity from seizure, though provided for by conven- 
tional rule, has been considered by many states — including the United 
States 7 — as resting upon well established custom. Whether or not a 
vessel falls within this exempted category depends primarily upon the use 
to which it is put rather than to its size or mode of propulsion. Thus it 
is clear that immunity from seizure does not extend to vessels engaged in 
deep sea fishing or to vessels which do not bring fish fresh to the market. 

military intelligence. Despite this consideration it was decided to exempt mails from seizure, 
even though containing military intelligence. The British claim, therefore, cannot possibly 
find support in the "international law" of Hague XL Instead, it is an open disavowal of the 
continued validity, in this respect, of the clear intent of Hague XI. Nevertheless, Great 
Britain (as well as other belligerents) sought to, and did, exercise this right of censorship over 
mails on neutral vessels that entered (whether voluntarily or involuntarily) British territorial 
waters and ports. 

6 In this general connection brief attention may be directed to another form of neutral inter- 
course with a belligerent — i. e., intercourse through submarine telegraph cables. The com- 
parison frequently drawn between neutral mail boats and cables is, as Higgins and Colombos 
(op. cit., p. 380) point out, hardly sound. The only conventional rule on the subject is that 
contained in Article 54 of the Regulations attached to Hague IV (1907), which reads: "Sub- 
marine cables connecting an occupied territory with a neutral territory shall not be seized or 
destroyed except in case of absolute necessity. They must likewise be restored and compensa- 
tion fixed when peace is made." It will be readily apparent that the severance of an enemy's 
communications forms an essential object in the conduct of hostilities, and belligerent practice 
is clear that cables connecting two points in enemy territory, or connecting the territory of two 
enemies, may be severed. So also the cables connecting enemy and neutral territory, though 
only in case of necessity. On the other hand, cables connecting two points in neutral territory 
must be held inviolable. See Law of Naval Warfare, Article 5x0b. 

7 The Supreme Court in the Paquete Habana (1900), 175 U. S. 677, considered the immunity of 
coastal fishing boats as based upon custom — though it was made clear that the rule applied 
only to coastal fishing vessels and not to those engaged in deep sea fishing. 

95 



The test is that the fishing should serve a purely local need, and that it must 
not be deep sea fishing. On the other hand, there is no indication that 
coastal fishing boats must remain strictly within territorial waters or that 
they must refrain from fishing off the coasts of third states (the latter so 
permitting). 

Similarly, in the case of boats engaged in coastal navigation it is local 
trade only that is permitted by Hague XI. Steamers engaged in general 
coastal trade, i. e., cabotage, are not accorded immunity from seizure. 
Furthermore, with respect to this latter category of boats it is not only the 
character of the trade that is restricted but the size of the boats as well. 
The Convention does not accord protection to large boats even though 
engaged only in local trade. 

The special protection granted to coastal fishing boats and small boats 
engaged in local coastal trade has always been dependent upon an abstention 
from any kind of participation in the conduct of hostilities. In addition, it 
is only reasonable that belligerent naval forces operating in the vicinity of 
these craft should be able to insure their security by requiring such vessels 
and boats to conform to the regulations of the belligerent naval commander 
operating in the area. 8 The movements of such vessels and boats may be 
restricted as military operations require, and immediate identification must 
be provided upon demand. The necessity for emphasizing these latter 
points is due to the ubiquity of radio-telephonic apparatus in even the 
smallest of boats and the ease with which coastal craft may be integrated 
into the intelligence network of an enemy. Indeed, recent experience 
points to the increasing use by belligerents of coastal craft for intelligence 
purposes. It should be clear that this development can only result in an 
increased liability to seizure or destruction of vessels and boats formerly 
exempt from such treatment. 

d. Vessels Engaged in Missions of a Religious, Scientific or Philan- 
thropic Character 

Article 4 of Hague XI states that exemption from capture is to be ac- 
corded "vessels charged with religious, scientific, or philanthropic mis- 
sions. ' ' 9 The value of this provision has been found to be extremely limited 
in practice. During World War I the question arose on several occasions 
as to the definition of a "philanthropic mission," the conduct of which 
would exempt an enemy vessel from seizure. 10 In the absence of special 

8 See Law of Naval Warfare, Article 503c (6). 

9 See Law of Naval Warfare, Article 503c (3). 

10 So far as vessels charged with religious or scientific missions are concerned the present 
significance of these exemptions is practically negligible. It is difficult to conceive of a "sci- 
entific" mission belligerents would now be prepared to accept and grant immunity to — except 
on the basis of a specific agreement. Earlier scientific missions generally were voyages of 
discovery, and on several occasions such missions were granted special protection. Thus 
Article 13 of the U. S. Naval War Code of 1900 exempted from capture public vessels of the 
enemy engaged in "scientific pursuits, in voyages of discovery ..." In the Naval War 

96 



agreement on specific voyages, and the consequent issuance of safe conduct 
passes, belligerents indicated that they were prepared to allow only the 
most narrow of interpretations. 11 This has meant, however, that the basis 
for the immunity granted enemy vessels performing humanitarian functions 
has not depended primarily upon the general rule contained in Article 4 of 
Hague XI but — in almost every instance — upon the express agreement of 
the belligerents. 12 

e. Hospital Ships, Medical Transports and Medical Aircraft 

The 1949 Geneva Convention for the Amelioration of the Condition of 
the Wounded, Sick and Shipwrecked Members of Armed Forces At Sea pro- 
vides that belligerent hospital ships, medical transports and medical air- 
craft are, when properly marked and duly notified to the other belligerents, 
immune from either attack or seizure. A more detailed analysis of the pro- 
visions of this recently concluded Convention, which replaces for the Con- 
tracting Parties Hague Convention X (1907), is presented in later pages. 13 

f. Cartel Ships 

Ordinarily the term cartel is used to indicate an agreement concluded 
between belligerents for the purpose of regulating the exchange of prisoners 

College commentary to Article 13 of the Code the opinion is expressed that private vessels 
engaged in religious, scientific or philanthropic missions are liable to capture: "the difficulty of 
responsible control is so great that these (private) vessels should be exempt only by grace of 
the commander in the immediate region, not by general rule." U. S. Naval War College, Inter- 
national Law Discussions, 1903, pp. 51-z. But Article 4 of Hague XI does not require that 
vessels so exempted be of a public character, and it is the general opinion that the immunity 
provided for extends either to public or to private vessels. 

11 Thus the transport of women and children refugees by an enemy vessel has not been 
construed as a philanthropic mission which, in the absence of a safe conduct pass, may result 
in exemption from seizure. Nor has the carrying of supplies for the purpose of succoring 
starving women and children. See Hackworth, op. cit., Vol. VI, pp. 543-6. 

12 Of course, the source of the special agreement may be a convention to which the belliger- 
ents are contracting parties. Thus the 1949 Geneva Convention Relative to the Protection of 
Civilian Persons in Time of War provides in Article 59 that an occupying power shall agree to 
relief schemes on behalf of the population of an occupied territory that is inadequately supplied, 
and shall facilitate such schemes by all the means at its disposal. Accordingly, the Contracting 
Parties to the Convention are obligated to permit the free passage of consignments of foodstuffs, 
medical supplies and clothing to occupied territory and to guarantee their protection. Article 59 
further declares that a state "granting free passage to consignments on their way to territory 
occupied by an adverse Party to the conflict shall, however, have the right to search the con- 
signments, to regulate their passage according to prescribed times and routes, and to be reason- 
ably satisfied through the Protecting Power that these consignments are to be used for the 
relief of the needy populations and are not to be used for the benefit of the Occupying Powers." 
It will be apparent that although the Convention on the Protection of Civilian Persons estab- 
lishes a general obligation for the Contracting Parties to grant exemption to vessels carrying 
those supplies noted above, and for the relief of occupied populations, the immunity granted to 
specific voyages must rest upon prior and express agreement between the belligerents (and — in 
all probability — upon the issuance of safe conduct passes). 

13 See pp. 12.3-34. The practice of belligerents during World War II, while still governed 
by Hague X (1907), is also discussed in these later pages. 

97 



of war. In a broader sense, however, the term has been used to refer to 
agreements permitting various kinds of non-hostile relations between 
belligerents, e. g., the exchange of official communications. 14 Vessels 
(and aircraft) engaged in carrying out the terms of such agreements, and 
particularly when engaged in the carriage of prisoners of war, must be 
regarded as inviolable. 15 But this inviolability is to be guaranteed only 
so long as cartel vessels (and aircraft) confine themselves strictly to those 
services for which they have been engaged. According to custom they 
must not carry any cargo — unless such carriage has been expressly per- 
mitted. Nor can they carry ammunition or other instruments of war. It 
is also customary to furnish cartel vessels with documents testifying to 
their character and to the missions upon which they are engaged. 

In addition to cartel vessels (and aircraft) belligerents may agree to 
extend safe conduct passes to enemy vessels (and aircraft) in order that the 
latter may perform any of various services bearing a humanitarian char- 
acter. Here, as elsewhere, exemption from either attack or seizure is 
guaranteed only so long as the vessel (or aircraft) strictly confines itself 
to the performance of those functions for which it has been engaged. 16 

14 "In its narrower sense a cartel is an agreement entered into by belligerents for the exchange 
of prisoners of war. In its broader sense it is any convention concluded between belligerents 
for the purpose of arranging or regulating certain kinds of non-hostile intercourse otherwise 
prohibited by reason of the existence of the war. Both parties to a cartel are in honor bound to 
observe its provisions with the most scrupulous care, but it is voidable by either party upon 
definite proof that it has been intentionally violated in an important particular by the other 
party." U. S. Army Rules of Land Warfare, paragraph 469. 

15 And this inviolability extends to return voyages or flights as well as to voyages or flights 
to ports or airfields in which the duties of a cartel vessel or aircraft are to be taken up. 

16 Law of Naval Warfare, Article 503c distinguishes among the following categories of enemy 
vessels and aircraft exempt from destruction or capture : 

"1. Cartel vessels and aircraft, i. e. vessels and aircraft designated for and engaged in the 
exchange of prisoners. 

4. Vessels and aircraft guaranteed safe conduct by prior arrangement between the belligerents. 

5. Vessels and aircraft exempt by proclamation, operation plan, order, or other directive." 
Whereas the first two categories enumerated (1 and 4) depend upon the prior agreement of the 

belligerents, the third category (5) does not. A belligerent is, of course, at liberty to grant any 
exemptions he may desire to vessels or aircraft otherwise subject to either attack or seizure. — 
The distinction normally drawn between cartel vessels and vessels granted safe conduct 
passes is not entirely free from obscurity. In either case the immunity of the vessel has as its 
basis an agreement concluded by the belligerents. It is also true that both categories of vessels 
are usually provided with special documents testifying to their character and innocent employ- 
ment. It would appear that the distinction has its basis partly in the fact that cartel vessels 
are engaged in the performance of particular kinds of missions, and especially in the carriage 
of exchanged prisoners of war, that they are especially commissioned as cartel ships, and that 
the services performed generally extend over the period of hostilities and not merely a voyage. 
On the other hand, vessels may be granted — by prior arrangement — safe conduct passes in 
order to perform any type of humanitarian service. The period during which the pass is valid 
may cover only one voyage and return or a number of voyages. 

During World War II the incident involving the sinking of the Atva Maru illustrated some of 
the problems involved in the satisfactory execution of agreements, concluded between bellig- 

98 



g. Enemy Goods Under a Neutral Flag 
At the outbreak of hostilities in 1914 the principle that free ships make 
free goods had been accepted by the overwhelming majority of states for 
well over a half a century. Article 2. of the Declaration of Paris of 1856 
had provided that " the neutral flag covers enemy goods, with the exception 
of contraband of war." 17 The rule constituted the most important excep- 

erents, providing for the safe conduct of enemy vessels. By prior agreement the Japanese vessel 
Awa Maru had been designated to carry relief supplies to Allied nationals held in Japanese 
custody and for this purpose had been granted Allied safe conduct. On the evening of April 1, 
1945, the Awa Maru was torpedoed and sunk by an American submarine while returning from 
a voyage to Hong Kong, Singapore and other ports, on which relief supplies furnished by the 
Allied Governments had been carried as part of the cargo. At the time of the sinking the Awa 
Maru was carrying a large number of Japanese nationals evacuated from danger zones, and 
although the United States questioned the propriety of utilizing the ship for this purpose the 
point was not pressed since Japan had earlier notified this country that the Awa Maru could not 
be used for the sole purpose of carrying relief supplies. Japan charged that the sinking repre- 
sented a deliberate violation of the agreement and demanded that the United States apologize 
to the Japanese Government for the sinking, punish those responsible, and indemnify the 
Japanese Government for the loss incurred. In reply, this Government categorically denied 
that the sinking had been either willful or deliberate, though it acknowledged — following an 
investigation — responsibility for the sinking and expressed its "deep regret." Disciplinary 
action was promised against the commanding officer of the submarine, and a promise of indemni- 
fication was deferred until the termination of hostilities. Later, however, the United States 
offered to replace the Awa Maru, not as indemnification but in order that there might be no 
impediment placed in the way of shipping and distributing relief supplies to Allied nationals. 
For the diplomatic correspondence on the Awa Maru sinking, see U. S. Naval War College, 
International Law Documents, 1944-45, pp- 1x5—38. The incident of the Awa Maru is indicative 
of the responsibility a belligerent must accept in guaranteeing safe conduct to enemy vessels. 
Although the Awa Maru had deviated slightly from her prescribed course and the visibility 
was low (though later investigation indicated she was showing the prescribed lights), it was 
clearly the burden of the commander of the American submarine to establish the identity of 
the vessel prior to attacking it. The failure to have done so placed responsibility for the incident 
squarely upon the United States. It may also be observed, however, that the sinking of the 
Awa Maru is suggestive of the possible consequences following upon the waging of unrestricted 
submarine (or aerial) warfare. 

17 The other provisions of the Declaration of Paris are dealt with elsewhere. Article 1, 
abolishing privateering, is considered in connection with the naval forces of belligerents, see 
pp. 40-3. Article 3, declaring that neutral goods — contraband excepted — are not liable to 
capture under the enemy's flag is referred to in earlier pages (85-6) of this chapter. Article 
4, requiring that blockades must be effective in order to be binding, is discussed in Chapter X, 
pp. 188-9. P r i° r to tne Declaration of Paris the principle that free ships make free goods 
had not enjoyed general acceptance. Great Britain, in particular, had never accepted it, 
maintaining instead the position that enemy goods were liable to seizure if found under a 
neutral flag. France, on the other hand, followed the practice of condemning neutral goods 
if found under an enemy flag. During the Crimean War both states abandoned their previous 
practices, though intending this only for the hostilities then being carried out. However, in 
the years immediately following the Crimean War the pressure of neutral interests became very 
strong and led to the Declaration of Paris. In effect, the Declaration represented a far reaching 
concession to neutrals, and British writers never tire in pointing out that from the viewpoint 
of British interests the Declaration represented a bad bargain. In surrendering the right as 
a belligerent to seize enemy goods even though under a neutral flag Great Britain received 

399334—57 8 99 



tion to the principle that a belligerent may seize and condemn enemy goods 
found at sea. 18 Indeed, the significance once attached in many quarters to 
this acceptance of the principle of "free ships, free goods" was such that 
it was used in support of the argument that the belligerent right to seize 
and confiscate enemy property at sea ought to be generally abolished, the 
expectation being that a belligerent could — in any event — transfer his trade 
to neutral vessels and thereby secure immunity from seizure. Given these 
circumstances the advantage enjoyed by belligerents in retaining the right 
to seize enemy property at sea was considered to be substantially dimin- 
ished. 19 

This expectation has never materialized, however. In both World Wars 
the Declaration of Paris, though remaining formally binding upon the 
belligerents, was nevertheless rendered ineffective — largely through the 
resort to reprisal measures. 20 But even apart from reprisals belligerents 
sought to reduce the possible scope of application of the principle that free 
ships make free goods. Thus belligerent prize courts have interpreted 
Article 2. of the Declaration of Paris as failing to provide protection to 
enemy goods when found under the flag of the captor state 01 of his allies. 
Further, immunity from seizure has been extended to enemy goods only 
while on board the neutral vessel; once unloaded, whether afloat or on 
shore, liability to seizure applies. Nor have goods transshipped from an 
enemy to a neutral vessel been regarded as entitled to the protection afforded 
by the Declaration of Paris. 

Still more important inroads upon Article 2. have followed from the 

nothing comparable in return. Article 1 of the Declaration did provide for the abolition of 
privateering — a practice from which Great Britain had seriously suffered during the Napole- 
onic Wars — but by 1856 privateering was already on its way out. Even then, the small advan- 
tage accruing to Great Britain was further reduced by Hague Convention VII (1907), allowing 
as it did the conversion of merchant vessels into warships though failing clearly to forbid 
such conversion on the high seas. The United States refused formally to adhere to the Declara- 
tion of Paris — for reasons now no longer relevant — though in practice this country followed 
the provisions of that instrument, and in 1914 considered them binding upon all belligerents. — 
See H. W. Malkin, "The Inner History of the Declaration of Paris," B. Y. I. L., 8 (192.7), 
pp. 1-44; and for a brief summary of the American attitude both prior to and following the 
Declaration, see Hyde, op. cit., pp. io4i~5. 

18 Of relatively minor significance is the practice, generally regarded as forming a part of 
customary law, of restoring to master and crew of seized enemy vessels their personal effects. 

19 Thus in 1905 the Naval War College concluded: "The Declaration of Paris of 1856 ... has 
made possible the transfer of a large portion of the enemy sea commerce to neutral flag in 
time of war. The absence of risk under neutral flag will also make possible cheaper rates under 
neutral flags. Under ordinary economic laws commerce would thus go to neutrals in time of 
war." U. S. Naval War College, International Law Topics, ipoj, p. 18. This conclusion was 
offered in support of the recommendation that "innocent enemy goods and ships" — i. e., 
goods not constituting contraband of war and ships not engaged either in contraband carriage 
or blockade breach — be made immune from capture. 

20 See pp. 2.96 ff., for a review of these reprisal measures and their effect upon Article 2. of 
the Declaration of Paris. 

100 



changes that have since occurred in the law of contraband. Article 2. 
specifically deprives enemy goods of the protection otherwise afforded by 
the neutral flag if such goods have the character of contraband of war. 
Aside from certain peripheral questions arising in the interpretation of this 
exception the main intent was simply to provide that the "neutral flag 
covers enemy's goods, with the exception of such as would, if neutral, be 
contraband of war." 21 In practice, the importance of this exception must 
be found to be proportionate to the degree to which belligerents have 
expanded the list of goods regarded as susceptible of use in war as well as 
the destination required of goods in order to justify their seizure and con- 
demnation as contraband. Modern developments in the law of contraband 
are dealt with elsewhere; 22 here it is sufficient to note that these develop- 
ments have operated drastically to reduce the significance formerly attribut- 
ed to Article 2. of the Declaration of Paris. 23 

Formally, the Declaration of Paris may be regarded as retaining its 
validity even today. In neither the decisions of belligerent prize courts 
nor the policies expressed by belligerent governments is there to be found 
evidence of a formal abandonment of that instrument. 24 In practice, how- 

21 U. S. Naval War College, International Law Topics, iqoj, p. 118. This is, in fact, the only- 
plausible interpretation since, as Stone (op. cit., p. 467) points out: "Strictly, the doctrine of 
contraband is inapplicable to enemy goods found at sea, since these are in any case confiscable 
as enemy goods. Presumably then the term refers to goods which, if owned by a neutral or allied 
trader would be contraband." The same writer further points out (p. 468) that although 
Article 2. expressly excepts only contraband from the immunity otherwise granted enemy goods 
covered by a neutral flag, "it is difficult to see why blockade-running goods should be immune 
when contraband is not; and the contrary seems to be generally assumed." — Belligerent prize 
courts have also applied the so-called doctrine of infection (see p. 2.76 (n)) to enemy goods 
carried in neutral bottoms. Thus goods otherwise immune from seizure have been held liable 
to condemnation if belonging to the same enemy owner of contraband goods and carried on 
the same neutral vessel along with the contraband cargo. 

22 See, generally, Chapter IX. 

23 At least so far as the import of goods to an enemy state under a neutral flag is affected. 
With respect to enemy exports under neutral flags, belligerents have sought to rely primarily 
upon reprisal measures (see pp. -2.96 ff.). — Still other questions have arisen in the interpretation 
of Article x, which deserve some attention. Although it is clear that the neutral shipowner 
as well as the private enemy owner of goods were intended to benefit from Article 2., it is not at 
all clear whether this benefit is to extend to goods owned by the enemy state. The Declaration 
itself speaks only of enemy goods (la marchandise ennemie) without further qualification as to 
private or public ownership. Nevertheless, the purpose of the provision — and of the Declara- 
tion as a whole — was to apply to the private property of an enemy and to private transactions. 
It has therefore been contended that goods owned either in whole or in part by the enemy state 
need not be given the protection of the Declaration. See H. A. Smith, "The Declaration of 
Paris in Modern War," haw Quarterly Review, 55 (1939), pp. 2.^-/-^. In principle, this position 
appears sound, though the practice of states affords no sufficient indication of the attitude 
taken on this point. Nor is there likely to be any further development in this respect, given 
the other belligerent measures which have practically done away with the protection granted 
by Article 2.. 

24 None of the prize codes issued by belligerents in the 1939-45 war denied this continued 
formal validity. And see Article 633c, Law of Naval Warfare. 

101 



ever, Article 2. of the Declaration has been deprived of material effect upon 
the conduct of hostilities by the interpretation given it by the belligerents, 
by the changes wrought in the law of contraband, and by its subordination 
to belligerent reprisal measures. It may of course be argued that these 
latter measures provide no sufficient reason for questioning the continued 
significance of Article 2.; that, on the contrary, the fact that belligerents 
felt compelled to resort to repfisals in order to override the rule that free 
ships make free goods itself testifies to its continued validity — and signifi- 
cance. As already observed, the merit of this particular argument — while 
not to be dismissed — ought not to be overestimated. It would, in fact, be 
much nearer the mark to state that in departing from Article 2. of the 
Declaration of Paris through the device of "reprisal measures" taken 
against allegedly unlawful behavior of an opponent belligerents found a 
ready instrument for preventing what they were in any event determined 
to prevent — if need be by the formal denunciation of the Declaration. In 
a word, the present significance of the Declaration of Paris in general, and 
Article 2. of that instrument in particular, must be further assessed in the 
light of the common belligerent determination to destroy the whole of an 
enemy's seaborne trade, whether carried in enemy or neutral bottoms. 25 

3 . The Conduct of Seizure 

The seizure — or capture 26 — of enemy merchant vessels as prize, being a 
hostile operation exercisable only during the existence of a state of war, 27 



25 For further reflections on this point, see pp. i&<\~7, 315-7- 

26 For further observations on the use of the terms "capture" and "seizure," see p. 105 (n). 

27 It remains the prevailing consensus of states, prize courts and writers on the law of war 
that the seizure of enemy vessels and goods as lawful prize (and, of course, the right of seizure 
as exercised against neutral vessels and cargoes, see pp. 33Z ff.) can only be exercised during a 
formal state of war and not during a period of armed conflict in which the parties involved do 
not admit — either explicitly or implicitly — that war as such exists. To this extent the law of 
naval warfare — at least so far as the right of prize is concerned — must be excepted from the 
more recent trend, noted in an earlier chapter (see pp. 13-5), of applying the law of war to 
situations of armed conflict held — for varying reasons — not to constitute a state of war. 
(Though it may be noted that during the period of hostilities (1947-48) between certain Arab 
states and Israel, Egypt exercised the right of seizure and established a prize court to pass upon 
the validity of maritime captures. At the time Israel was not considered as constituting a 
state in the sense of international law.) 

Even so, there is some question as to the period in which the right of prize is applicable. 
Its starting point may be taken as from the time a state declares war. But a declaration of 
war may be — and occasionally has been — made retroactive, though such retroactive declara- 
tions may prove to be only a device whereby a state resorts to an "anticipatory embargo," 
in substance if not in form. Still further, it is in all cases true that in the absence of express 
treaty provision to the contrary the seizure of enemy property after the conclusion of peace 
is forbidden (though the decisions of prize courts upon vessels and goods seized prior to this 
time are valid). Some difficulty, and uncertainty, does arise, however, with respect to 
the effect of a general armistice upon the right of prize. In principle, the conclusion of an 
armistice seems to have the effect of suspending the right of prize unless the armistice agree- 



102 



is forbidden within neutral jurisdiction. 28 But apart from the inviolability 
of neutral jurisdiction enemy property may — if not accorded special pro- 
tection — be seized anywhere upon the high seas, within the territorial 
waters, harbors and ports of either the captor or the enemy state, and even 
upon rivers, inland seas or lakes. The subjects of the right of seizure are 
normally the units which comprise the naval forces (i. e., warships and 
military aircraft) of belligerents, although exceptionally the seizure of 
enemy vessels and cargoes may be undertaken by the civil authorities of a 
belligerent and even by private individuals. 29 

The act of seizure itself consists essentially in the taking of effective 
control over an enemy vessel; from the time such effective control is exer- 
cised the vessel is regarded as seized. 30 In the past, the effective control 
required was normally accomplished through the sending of a prize crew 
on board the captured enemy vessel following visit and search. In the 
circumstances presently characterizing the conduct of warfare at sea this 
procedure must frequently prove impracticable, however, and there is 
nothing to prevent the captor from seizing and maintaining effective 
control through other methods. There is no legal requirement that the 
act of seizure be preceded by the visit and search of the enemy merchant 



ment itself provides to the contrary. During World War I the armistice of November it, 
1918 declared that the so-called "blockade" of Germany continued in force and that German 
merchant vessels met at sea remained liable to seizure. See Garner, op. cit., pp. 104-6. Thus 
the law of prize — both in its application to enemy as well as to neutral vessels — remained in 
effect as far as the Allies were concerned. Germany, on the other hand, was required not only 
to renounce the right of seizure but to release all neutral vessels already seized. World War 
II practice, in this respect quite varied, is reviewed by S. W. D. Rowson, op. cit., pp. 172.-4. 

28 See pp. zi 9-2.3, 2.59-60 for a discussion of the nature and scope of the prohibition against 
resorting to seizure — or to visit and search — within neutral jurisdiction. 

29 "The persons effecting a capture may in fact belong to the military, naval or other public 
service, or they may be private citizens. They may even be occupants of the ship that is seized. 
Thus the crew of a captured vessel, in charge of a prize crew of inferior strength, may rescue 
the ship from those asserting control over it, and so capture it. The work of capture, save when 
such action takes the form of rescue by occupants of a captured ship, or is the consequence of 
resistance to capture, should be confined to the public, and preferably the naval forces of a 
belligerent." Hyde, op. cit., p. 2.02.3. 

30 As to what constitutes capture the most frequently cited statement is that given in the 
judgment of the Judicial Committee of the Privy Council in The Pellworm: 

"In principle it would seem that capture consists in compelling the vessel captured to conform 
to the captor's will. When that is done deditio is complete, even though there may be on the 
part of the prize an intention to seize an opportunity of escape, should it present itself. Sub- 
mission must be judged by action or by abstention from action; it cannot depend on mere 
intention, though proof of actual intention to evade capture may be evidence that acts in 
themselves presenting an appearance of submission were ambiguous and did not result in a 
completed capture. The conduct necessary to establish the fact of capture may take many forms. 
No particular formality is necessary." The Pellworm and Other Ships [19x0], 9 Lloyds Prize Cases, 
p. 175. In this instance it was decided that hauling down the flag did not result in capture 
unless the enemy merchant vessel actually submitted to the captor's will. 

103 



vessel, although the contrary opinion still finds frequent expression. 31 Nor 
is it necessary to send a prize crew on board. Instead, enemy vessels may 
simply be ordered to proceed under escort of a belligerent warship, or 
belligerent military aircraft, 32 to one of the belligerent's ports or to the port 
of an ally. 33 

a. Destruction of Enemy Prizes 
In a general sense the act of seizure in naval warfare, and hence the 
effects of seizure, may be considered in relation to all the vessels and goods 
of an enemy, whether public or private in character. Although the war- 
ships of an enemy are always liable to attack and destruction, they may in- 



31 The statements made in the text above raise several points which deserve additional com- 
ment. The traditional procedure for effecting seizure had been the same for both enemy and 
neutral vessels. Visit and search preceded seizure, and the latter was normally effected through 
sending a prize crew on board the vessel. In the case of enemy vessels armed resistance might 
well be offered, but in this circumstance the vessel had to accept the consequences of its action. 
It will be apparent that this traditional procedure can no longer be regarded as wholly com- 
patible with naval warfare as presently conducted, given the dangers presented by armed enemy 
merchant vessels, submarines and aircraft. (Of course, in the improbable case of belligerent 
military aircraft attempting seizure of enemy vessels it is normally absurd even to contemplate 
visit and search at sea, let alone to provide prize crews.) — It is entirely doubtful, though, 
whether this traditional procedure was ever strictly required. The purpose of visit and search 
has always been — in principle — to determine whether sufficient cause for seizure exists. In the 
case of enemy vessels such cause will always exist unless the vessel falls in one of the categories 
granted special protection. In the case of neutral vessels the matter is admittedly different 
since the latter are liable to seizure only if engaged in certain acts (contraband carriage and 
blockade breach); and the seizure of neutral vessels without sufficient cause gives rise to a 
liability of the captor for losses incurred by the owners of the vessel as a result of wrongful 
seizure. But certainly the seizure of an enemy vessel or of a neutral vessel for sufficient cause 
has never been questioned by prize courts simply because not preceded by visit and search. Nor 
have neutrals complained if seizure was not preceded by visit and search, so long as legitimate 
cause for the seizure of a neutral vessel could later be established in a court of prize. Besides, if 
belligerents wish to take the risk of illegal seizure they may clearly do so. See, generally, 
U. S. Naval War College, International Law Situations, 1930, pp. i.'y ff. — From a rather abstract 
point of view, therefore, it may be said that visit and search forms no part of the act of seizing 
enemy merchant vessels, such vessels always being liable to seizure. From a practical point of 
view, visit and search may of course prove necessary if positive identification of enemy character 
cannot be made by other methods. See Law of Naval Warfare, Article 5o2.a. In the main, how- 
ever, visit and search may properly be regarded as a procedure relevant to the seizure of neutral 
merchant vessels and as such is considered in a later chapter (Chapter XII). 

32 In the case of enemy merchantmen, readily identified as such, the scope of action permitted 
to belligerent military aircraft is certainly no less than that granted to belligerent warships. 
The right of the latter to seize enemy vessels without prior visit and search must be accorded 
equally to belligerent military aircraft. On the quite different question of the diversion of 
neutral merchant vessels by belligerent military aircraft, see pp. 342.-3. 

33 Still further, the belligerent may compel the enemy prize — if need be by measures of force — 
to accede to such orders as are given her. In the event a prize crew is sent on board the prize the 
master and crew may be requested to assist the captor, although they cannot be compelled to 
do so. The act of seizure is signified by ordering the captured enemy vessel to lower her flag, 
the captor's flag being flown at the usual place (peak or staff) over the enemy flag. — On the 
ultimate disposition of the officers and crews of captured enemy merchant vessels, see pp. 111-6. 

104 



stead be captured. Where enemy warships are captured title to such vessels 
immediately vests entirely in the captor state by virtue of the fact of cap- 
ture. 34 In this respect, however, the consequences following upon the 
taking of effective control over an enemy warship differ from the conse- 
quences following upon the seizure of privately owned enemy merchant 
vessels. Title to the latter does not finally vest in the captor state until 
the vessel has been brought before a prize court and duly condemned as 
lawful prize. 35 In the case of cargo carried on board seized enemy mer- 
chant vessels the need for adjudication is clearer still, since part of the cargo 
may well be owned by neutrals. 36 For these reasons, among others, it 



34 Law of Naval Warfare, Article 503a (i). 

35 Simply Stated, the function of a prize court is to pass upon or to confirm the validity of 
all maritime captures, and title to the privately owned vessels or goods of an enemy (or of a 
neutral) seized in prize does not finally pass to the captor until adjudication by a court of prize. 
Hence, even if an enemy vessel has been destroyed following capture, adjudication remains 
necessary. Occasionally, however, it has been contended that as between the belligerents 
title to privately owned enemy vessels normally vests in the captor state by virtue of the fact 
of capture. Thus Hyde (pp. cit., p. X383) observes that: "As long as the law of maritime war 
permits a belligerent to appropriate generally enemy ships and enemy property thereon, both 
private and public, the State of the captor would seem to be justified in claiming that the fact 
of capture vests title in itself as against the enemy." (And see Law of Naval Warfare, Chapter 
5, note 19.) At the same time Hyde goes on to declare that to establish "an indefeasible title 
to an enemy prize as against the legitimate claims of neutral States or persons, condemnation 
is regarded as necessary. This circumstance together with other practical considerations 
render it highly expedient that enemy prizes should always be made the subject of adjudication 
with a view to condemnation." This view is clearly a minority one, though, since the pre- 
vailing opinion — shared by the great majority of writers and frequently endorsed by prize 
courts — is that every enemy prize ought to be judged, that a valid title cannot arise simply from 
the military act of seizure, and that title passes only with the condemning judgment of a court 
of prize. 

36 This for the reason that neutral goods — contraband excepted — on enemy ships ordinarily 
are not liable to condemnation, at least if the neutral owner can clearly establish their innocent 
character. — Although the distinction drawn above in the text is an old one, and in itself raises 
no novel questions, there is a certain difficulty — or at least an ambiguity — involved in the 
terminology used to describe acts of varying legal significance and involving different legal 
consequences. Thus H. A. Smith (The Law and Custom of the Sea, p. 100) criticizes the "indis- 
criminate" use of the terms "capture" and "seizure," suggesting instead that capture be used 
"to indicate those cases in which the act of taking control immediately transfers the full legal 
ownership of that which is taken" (e. g., warships, enemy vessels in the public service and 
state owned property) and seizure to indicate "these cases in which the act of taking control 
does not by itself change the ownership, but is merely provisional, the final change of ownership 
being conditioned on what is called 'condemnation' by a court of prize" (e. g., privately owned 
enemy vessels and goods, neutral vessels seized for unneutral service, blockade breach and 
contraband carriage). It must be observed, however, that general usage has been, and will 
probably continue to be, to use the terms interchangeably. Nor is there any real harm in this 
so long as it is understood that there is a distinction to be drawn between the appropriation of 
state owned property — which falls to the captor as legitimate booty of war — and the appropri- 
ation of privately owned enemy property — which comes under the right of prize and is therefore 
governed by the law of prize, including the necessity for adjudication. — In this connection one 
further point should be noted. The traditional law is clearly based on the assumption that 

105 



is considered desirable that — circumstances permitting — enemy mer- 
chant vessels once seized should either be sent or conducted into port for 
adjudication. 37 

Occasions frequently arise, however, when the sending of an enemy prize 
into port proves either impossible or highly inconvenient. The condition 
of the prize may be such as to prevent her further navigation. The captor 
may be unable to spare a prize crew and unwilling to conduct the enemy 
prize into port if such action would thereby interfere with the military 
operations upon which he is engaged at the time of seizure. Rather than 
release the prize the practice of belligerents in these — as well as in still 
other — circumstances has been to resort to the destruction of the vessel and 
cargo; and — in principle — the belligerent license to destroy enemy prizes in 
certain circumstances is firmly established in law, despite continued contro- 
versy as to the precise nature of the circumstances in which belligerents may 
resort to destruction. Although the assertion is still made by some writers 
that the destruction of enemy prizes is permitted only where circumstances 
render any other course impossible, it now appears reasonably clear that this 



warships apart (and certain other limited categories of vessels in the enemy's public service) 
the vessels and goods of an enemy will be privately owned. But what of publicly owned 
vessels engaged solely in commercial activities? Is their seizure, as well as the seizure of state 
owned cargoes, to be regarded as the taking of legitimate booty of war, and therefore outside 
the law of prize? Or is their seizure to be assimilated to the act of seizing privately owned 
enemy vessels and goods? Belligerent practice to date hardly furnishes a clear answer in this 
regard, though on principle the former alternative would appear correct. See, for example, 
Rowson, op. cit., pp. 175-7. Even so, a clear distinction would still be warranted between the 
liability of state owned vessels — engaged in commercial activities — to seizure as booty of war 
and their liability to attack in a manner similar to warships. As already pointed out (see p. 68 
(n)), there appears to be no justification for making such vessels liable to attack simply by 
virtue of their public ownership. — As to the quite different question of the applicability of 
prize law to neutral state owned vessels and cargoes, see pp. 2.13-4, 335-6. 

37 State practice is equally clear, however, that a belligerent may convert captured enemy 
merchant vessels to his immediate public use should circumstances so require. In American 
law the procedure to be observed when sending in enemy and neutral prizes for adjudication is 
set forth in the text of the Prize Statutes, U. S. Code, Title 34, Chapter zo, Sees. 113 1-67. Prior 
to World War II the requirement had been that in order for a Federal District Court to obtain 
jurisdiction to entertain prize proceedings a seized vessel had to be brought to the United States. 
During World War II amendments to the prize law were made in order to allow such juris- 
diction to Federal Courts if a prize "was brought into the territorial waters of a co-belligerent 
(the latter so consenting) or into a locality in the temporary or permanent possession or occupa- 
tion of the armed forces of the United States." In addition, the World War II amendments 
extended prize law to aircraft. Finally, the procedure for making immediate use of captured 
vessels, and avoiding the necessity for applying to the Prize Court for requisition of the prize, 
was broadened. See, generally, the publication Instructions For Prize Masters and Special Prize 
Commissioners (NAVEXOS P-82.5), Office of the Judge Advocate General, Department of the 
Navy, (1949). Also, Law of Naval Warfare, Article 5ozb (8) and notes thereto. See also Chapter 
XII, pp. 344-8, for further discussion of these and related points as they apply to neutral prizes. 
And on the taking of prizes — whether enemy or neutral — into neutral ports, see pp. 245~7* 



106 



formula is much too restrictive. Instead, it would seem that the wide- 
spread practice followed by belligerents is indicative of the conviction that 
the destruction of enemy prizes is permitted whenever military necessity — 
a term which, in this context, must have broad application — so requires. 38 
Before resorting to the destruction of enemy prizes the captor is obliged 
to remove the passengers and crew, as well as the ship's papers, to a place of 
safety. 39 And despite the practices pursued by many of the belligerents 
during the two World Wars there is as yet insufficient warrant for denying 
the continued validity of obligations established by custom and subse- 
quently reaffirmed by convention. No doubt it is true that in the past sub- 
marines (and aircraft) have been — in nearly every instance — incapable of 

38 Distinguish, though, between the destruction of enemy prizes and the destruction of 
neutral prizes. The conditions permitting the destruction of neutral prizes are considerably- 
more restrictive and are examined in a later chapter (see pp. 349-53). (It should be made clear, 
however, that in referring to the destruction of enemy prizes, neutral vessels acquiring enemy 
character are included.) See Article 503b (x) Law of Naval Warfare. The formula of "military 
necessity" given in the initial sentence of Article 503b (2.) follows earlier Instructions and 
represents the traditional policy of this country. British practice has been interpreted as per- 
mitting destruction of enemy prizes in two cases ". . . first, when the prize is in such a condition 
as prevents her from being sent to any port of adjudication; and, secondly, when the capturing 
vessel is unable to spare a prize crew to navigate the prize into such a port." Oppenheim- 
Lauterpacht, op. cit., pp. 487-8. In effect, however, British practice has allowed destruction 
in other cases of "military necessity." Thus Higgins and Colombos (pp. cit., pp. 607-8) point 
out that the British Prize Court has permitted destruction of enemy prizes when "the capturing 
British warship was engaged in pursuing the enemy fleet and could not stop for the purpose 
of taking the vessel into port." Article 71. of the 1939 German Prize Law Code declared that 
captured enemy vessels may be destroyed "if it appears to be inexpedient or unsafe to bring 
them into port." In both wars German surface warships, even when first seizing enemy vessels — 
and not resorting to sinking without warning — nearly always resorted to destruction. 

It remains disputed whether or not the captor state is obliged to render compensation to the 
neutral owners of goods on board an enemy vessel that has been lawfully destroyed. The 
opinions of writers are sharply divided on this point, and the practice of states is none too clear. 
German prize courts during World War I denied neutral owners any right of compensation. 
Before the British Prize Court the matter was never clearly adjudicated upon, though nine- 
teenth century decisions can be cited on behalf of a right of compensation. Nor is there any 
clear indication as to what the position of the United States may be on the matter. Hyde (op. 
cit., p. 2.2.2.9) contends that there ought to be no right of compensation to neutral owners, that 
neutral cargo on board enemy vessels ought not to become a shield to protect such vessels from 
the lawful act (i. e., destruction) of the captors. This may well be, but it is equally true that 
if this opinion is accepted Article 3 of the Declaration of Paris is rendered practically worthless. 
For the latitude now given belligerents in destroying enemy prizes would amount to granting 
belligerents an equal latitude in destroying innocent neutral goods when carried on board. 
Nevertheless, it must be conceded that the view holding that no compensation need be accorded 
the neutral owners of cargo is much more in accord with the over-all recent trends of bellig- 
erent practices. 

39 An obligation which is not fulfilled merely by allowing passengers and crew to take to 
the ship's boats unless the safety of the latter is assured, in the existing sea and weather con- 
ditions, by the proximity of land, or the presence of another vessel which is in a position to 
take them on board. 



107 



satisfactorily fulfilling these obligations. But the fact that the captor may 
be unable to provide for the safety of passengers and crews of enemy mer- 
chant vessels cannot be regarded as a justification for non-compliance with 
the law. 40 Indeed, to argue otherwise must logically involve the further 
assertion that he who cannot seize may nonetheless sink. It has been pre- 
viously urged that the law of naval warfare has still to condone the latter 
doctrine. 41 There is no more reason to believe that this law as presently 
constituted has accepted the doctrine that he who cannot provide for the 
safety of passengers and crew following seizure may nonetheless destroy. 

E. THE SEIZURE AND DESTRUCTION OF ENEMY AIRCRAFT 

It remains uncertain to what extent the rules regulating the seizure and 
destruction of enemy merchant vessels are applicable — by analogy — to 
enemy civil aircraft. 42 Quite apart from the fact that the rules governing 
the treatment of enemy merchant vessels are themselves in an unsettled 
state, the attempt to adopt rules operative in naval warfare to the seizure 
and destruction of aircraft presents obvious difficulties. At the same time, 
it is clear that in many respects belligerent practice in conducting aerial 
warfare is so slight at present as to provide no real guidance to that be- 
havior belligerents may consider as both obligatory and right. Nor is it 
very useful — in the absence of such practice — to continue to place undue 
emphasis upon the 192.3 Rules of Aerial Warfare, drafted by the Commission 
of Jurists at The Hague. Though undoubtedly a significant contribution 
at the time, these draft rules provide today little more than a landmark to 



40 Though in the circumstances presently characterizing the conduct of naval warfare it has 
been argued that the equities of passengers and crew may be affected by the nature and conduct 
of their own ship. Thus, Hyde (pp. eit., p. 2.oz6) declares that in the case of an armed 
merchant vessel "which in consequence of resistance or otherwise has become unseaworthy, 
the duty to offer safe accommodation to persons on board would appear to be dependent upon 
the military requirements of the captors." Strictly speaking, though, there is no apparent 
basis for this opinion in the traditional law. Undoubtedly acts of resistance render enemy 
merchant vessels liable to attack and possible destruction. But once the vessel had been 
seized, and the captor had asserted his effective control, no discrimination was made toward 
crews for having offered resistance prior to capture. It may well be claimed, however, that 
it is no longer reasonable that captors be expected scrupulously to fulfill the obligation of 
ensuring the safety of crews of enemy merchant vessels when such vessels are — for all practical 
purposes — integrated into the enemy's military effort at sea and have offered acts of resistance 
prior to capture; and in these circumstances a captor unable to take officers and crews on board 
before resorting to the destruction of enemy prizes nevertheless fulfills his duty by permitting 
the latter to take to the ship's boats. Certainly, there is much force to this argument, even 
though it is still unrecognized in law. 

41 See pp. 67-70. 

42 On the classification of enemy aircraft, see Law of Naval Warfare, Section 500. The term 
"civil aircraft," as used in the text above, is intended to include the same aircraft as are included 
in Section 500b. 



108 



one phase in the historic development of juristic thought on the regulation 
of aerial warfare. 43 

On one central issue state practice does appear to be reasonably well 
settled. The liability to capture and confiscation of enemy civil aircraft, 
and of enemy goods on board, now enjoys general support, and it is not 
likely that this adaptation of the practice operative in warfare at sea rather 
than the practice governing seizure of property on land will be reversed. 44 

43 For a general discussion and analysis of the problems dealt with in this section, see Spaight, 
op. cit., pp. 394-418. The attempt to apply maritime practices to aerial warfare formed the 
basis of much earlier speculation, and the influence of the maritime analogy was apparent in 
the work of the Commission of Jurists. For the text of the 192.3 Rules of Aerial Warfare, 
together with the general report of the Commission of Jurists, see U.S. Naval War College, Inter- 
national Law Documents, 1924, pp. 108-54. With respect to the seizure and destruction of enemy 
civil aircraft it is difficult to estimate the effect of the 19x3 Rules upon later belligerent practice, 
if only for the reason that this later practice has been so slight. If the deference shown to the 
provisions of the 192.3 Rules dealing with aerial bombardment are to be regarded as generally 
indicative of the degree to which belligerents may be expected to follow the other prescriptions 
of this draft code, then the 19x3 Rules hardly retain more than an historic interest. However, 
the fate suffered by the 19^3 Rules of Aerial Warfare does not justify their characterization as 
"examples of a high-water mark in legal fantasy" (C. P. Phillips, "Air Warfare and Law: An 
Analysis of the Legal Doctrines, Practices and Policies," George Washington Law Review, zi 
(1953), p. 3x6), unless the excesses of modern — and total — war are to be regarded as an entirely 
normal state of affairs. The mistake — though hardly a fantasy — of the Commission of Jurists 
was in assuming that belligerents would not look upon the practices of World War I as a desir- 
able standard for the conduct of future wars. On this assumption — however sanguine it may 
now appear with the advantage of hindsight — the 19x3 Rules were quite realistic. 

In the absence either of conventional regulation or of belligerent practice constitutive of 
customary rules it has been contended that the general principles of the law of war place re- 
strictions upon the seizure and destruction of enemy aircraft, and that "whenever a departure 
from these principles is alleged to be necessary, its cogency must be proved by reference either 
to express agreement or to the peculiar conditions of aerial warfare. ' ' Oppenheim-Lauterpacht, 
op. cit., p. 5x0. No doubt this opinion may be considered as justified — in theory at least. Yet 
it would serve little purpose to ignore the obstacles encountered in applying the general 
principles of the law of war to aerial warfare. In the case of aerial bombardment these diffi- 
culties have long been painfully apparent (see pp. 146-9). If they are less apparent with respect 
to seizure and destruction of enemy aircraft this may be attributed largely to the peripheral 
importance of this problem alongside the momentous issues posed by aerial bombardment. 
The dearth of actual practice relating to seizure and destruction of enemy civil aircraft is a 
further reason for continued speculation that may prove to have little relevance to actual 
practice. The unfortunate truth is that in the absence of customary or conventional rules 
effectively regulating the conduct of aerial warfare in some detail, the invocation of general 
principles has a distinctly limited utility, particularly when these general principles are them- 
selves subject to varying interpretations (see pp. 46-50). 

44 Article 52. of the 19x3 draft Rules, in following maritime practice, provided that enemy 
private aircraft "are liable to capture in all circumstances." Article 55 declared that the 
capture of aircraft or goods on board "shall be made the subject of prize proceedings, in order 
that any neutral claim may be duly heard and determined." — During World War II a number of 
belligerents — including Great Britain and the United States — amended their prize legislation 
so as to include aircraft and goods carried on board. (See S. W. D. Rowson, op. cit., pp. 2.09-13 
and A. W. Knauth, op. cit., pp. 76-7.) The American Prize Act of June Z4, 1941 (55 Stat. 2.61; 
34 U. S. Code Sec. 1131) does not specify where aircraft may be captured, though the capturing 

109 



But belligerent practice has not yet given rise to any definite procedure gov- 
erning the conduct of seizure in the case of enemy civil aircraft. 45 

No particular problem would appear to arise with respect to the destruc- 
tion of enemy aircraft once seizure has been made and the captor has been 
able to remove passengers and crew to a place of safety. In these circum- 
stances the capturing belligerent must be regarded as having at least the 
same discretion as he already possesses in destroying enemy merchant 
vessels. Of critical importance, however — and as yet far from resolved — 
is the question of the occasions in which enemy civil aircraft may be fired 
upon while still in flight. In principle, the rule granting non-combatants 
immunity from direct attack must be regarded as applicable to hostilities 
wherever conducted. There is no apparent reason why aerial warfare 
should be thought of as an exception, and — in fact — belligerents have never 
contended that in the air they may discard a distinction long operative 
in hostilities on land and at sea. At the same time, it has frequently been 
contended that given the special circumstances attending aerial hostilities 
the scope of the immunity from direct attack granted non-combatants 
necessarily must prove more restticted than elsewhere. 46 

In earlier pages attention has been directed to those acts which when 
performed by enemy merchant vessels serve to deprive the latter of immunity 

agency appears to have been limited to the Navy. The British Prize Act of 1939, in extending 
prize law to aircraft, is quite clear that the capture of aircraft may occur even though the 
aircraft is over land. — Presumably, the rules governing the enemy character of vessels will 
apply by analogy to aircraft. On the question of belligerent aircraft in enemy territory at the 
outbreak of war, see p. 90. On the rules governing the use of medical aircraft and transports 
under the 1949 Convention on the Amelioration of the Condition of Wounded, Sick and Ship- 
wrecked Members of the Armed Forces at Sea, see pp. 12.9-31. And, finally, on the application 
of prize law to neutral aircraft, see pp. 354-6. 

45 No doubt it is true that as in the case of enemy vessels so in the case of enemy aircraft the 
act of seizure must consist in the assertion of effective control over the aircraft. Assuming 
that the place of encounter is over the high seas a belligerent may use any convenient method 
to signal to the enemy civil aircraft and to order her to proceed to one of the belligerent's land- 
ing fields (on the rarest of occasions landing at sea may even prove feasible). Failure to carry 
out such orders will constitute sufficient reason for employing forcible measures. But what 
course of action is permitted to a belligerent aircraft (or, for that matter, to a belligerent war- 
ship) against enemy civil aircraft that lack the fuel to carry out the belligerent's directions? 
The problem has no parallel in naval warfare. For suggestions on the conduct of visit, search 
and seizure of aircraft see U.S. Naval War College, International Law Situations, 1938, pp. 15-15. 

46 The nature of these circumstances are sufficiently apparent and need not be examined once 
again in these pages. Spaight (of. cit., pp. 398-9) points out that although the attack of 
civil aircraft results in a more serious danger to the individual occupants than does similar 
action when directed against merchant vessels, nevertheless, "the military necessity for war- 
like action that may involve loss of innocent life is greater in the former case, for the speed 
of an aircraft, its ability to elude siezure, and its capacity for damaging action (either by bomb- 
dropping or by observing important movements), render it a more dangerous potential enemy 
than a sea vessel; and there is always the possibility that an apparently non-military aircraft 
may be a combatant one disguised." 

110 



from attack. 47 There is little question but that the same acts if performed 
by enemy civil aircraft may result in a liability to attack. Thus any 
attempt by enemy civil aircraft to resist the orders given by belligerent 
aircraft, or to flee upon being duly summoned by a belligerent, will justify 
the use of force. Similarly, civil aircraft found flying under escort of enemy 
military aircraft may be fired upon. Liability to attack may also result 
from the carriage of armament. 48 Finally, if the civil aircraft of a bel- 
ligerent are integrated in any way into the military effort of the state they 
need not be accorded immunity from attack on sight. 49 

F. THE TREATMENT OF ENEMY SUBJECTS 

i . Prisoners of War 
It has always been clear that the combatant personnel of belligerent war- 
ships, whether vessels of the line or auxiliaries, who fall into the hands of 
an enemy during the course of naval hostilities are to be accorded the status 
of prisoners of war. The same status has been held to attach to the non- 
combatant members of a belligerent's naval forces, unless granted special 
exemption, as well as to those persons who officially accompany the naval 



47 See pp. 56 ff. 

48 Quite apart from military consideration, which would clearly dictate attacking any enemy 
aircraft found to be bearing armament, there is no practice to which belligerents can turn to 
justify the "defensive" arming of civil aircraft. Any attempt to apply here the practices of 
naval warfare would not bear serious scrutiny, and belligerents have never suggested otherwise. 

49 In the circumstances enumerated above the liability of enemy civil aircraft to attack does 
not succeed in raising serious question. In warfare at sea it has always been true that the im- 
munity from attack granted belligerent merchant vessels is dependent upon the abstention from 
all acts of force against a captor as well as upon the absence of any relationship to the military 
operations of a belligerent. The fulfillment of the same general conditions must be regarded 
as even more mandatory in the case of aerial warfare. It is beyond this point, however, that 
uncertainty persists. To what extent does the nature of aerial warfare, and the potential danger 
posed by enemy aircraft, permit the resort to measures that are yet to be accepted in naval 
warfare? (Of course, if the position is accepted that belligerents are now at liberty to attack 
enemy merchant vessels without warning, and to destroy them without first insuring the safety 
of passengers and crew, then no problem arises in the case of aerial warfare. What is permitted 
atainst merchant vessels is equally permitted — from this point of view — against civil aircraft.) 
In this respect, Spaight (op. cit., pp. 400-1) suggests that belligerents may close limited aerial 
zones over the high seas to both enemy and neutral aircraft, and attack any aircraft thereafter 
entering these aerial enclosures. Nevertheless, he insists that the belligerent in establishing 
such a zone must be able to show "concrete grounds for his action, e. g., to operations actually 
in progress on the spot, or important concentrations therein for pending operations, to the 
constant patrolling of the zone by his aircraft in the search for enemy submarines, to the regular 
passing of transports over a line of communications, or to some other form of military activity 
which differentiates the area in question from the ordinary high sea." There can be little ques- 
tion but that as against belligerent civil aircraft the closure of such restricted aerial zones 
over the high seas — and their rigid enforcement — does not raise any substantial question. As 
to the operation of these zones with respect to neutral aircraft, see pp. 300-1. 

Ill 



forces without actually being members thereof. 50 In an even broader sense, 
the status of prisoners of war has been customarily conferred upon the 
personnel of all the public vessels of a belligerent. 51 

With respect to the officers and crew of a captured private enemy merchant 
ship, the traditional practice of belligerents prior to this centuiy had gen- 
erally been to make them prisoners of war. 52 But a quite different procedure 
was provided for in Hague Convention XI (1907). In the event of capturing 
an enemy merchant ship the parties to that Convention were obliged not 
to make prisoners of war those members of the crew who were nationals of 
a neutral state. The same rule applied in the case of the captain and officers, 
likewise nationals of a neutral state, if they promised formally in writing 
not to serve in an enemy ship for the duration of the war. 53 Nor were the 
captain, officers, and members of the crew who were nationals of the enemy 
state to be made prisoners of war, if they undertook, on the faith of a formal 
written promise, not to engage, while the hostilities lasted, in any service 
connected with the operations of the war. 54 In each instance a pledge was 
given, the captor was to notify the other belligerent, and the latter was for- 
bidden knowingly to employ the said persons. 55 The preceding provisions 
were qualified, however, by the stipulation that they did not apply to 
ships "taking part in the hostilities," 56 a phrase which was given from the 
very start the broadest possible interpretation. 

In the light of belligerent practice during the two World Wars it is hardly 
useful to continue to accord any significance to these provisions of Hague 
XI, at least to the extent that they concern the status of enemy subjects 



50 See Law of Naval Warfare, Article 511a, which reflects the customary international law 
applicable to hostilities whether conducted on land, at sea or in the air. As between the parties 
to the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, the categories 
of individuals entitled to that status are enumerated in Article 4. The other 1949 Geneva 
Conventions For the Protection of War Victims are: The Convention for the Amelioration of 
the Condition of the Wounded and Sick Armed Forces in the Field, the Convention For the 
Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed 
Forces at Sea, and the Convention Relative to the Protection of Civilian Persons in Time of 
War. For a detailed treatment of the Convention governing treatment of wounded, sick and 
shipwrecked at sea, see pp. 117-38. The United States ratified the four 1949 Geneva Con- 
ventions in August 1955. 

51 Even though not forming a part of the naval or military forces of a belligerent — e. g., 
customs and police vessels. Exemption must of course be made for the personnel attached to 
those public vessels granted special immunity from either attack or seizure. 

52 Article 11 of the U. S. Naval War Code of 1900 provided that: "The personnel of a mer- 
chant vessel of an enemy captured as a prize can be held, at the discretion of the captor, as 
witnesses, or as prisoners of war when by training or enrollment they are immediately available 
for the naval service of the enemy, or they may be released from detention or confined." 

53 Article 5. 

54 Article 6. 

55 Article 7. 

56 Article 8. 



112 



making up the crews of enemy merchant ships captured by a belligerent. 57 
They clearly were not intended to apply to the personnel of publicly owned 
and controlled belligerent merchant vessels. It seems equally clear that 
they were never designed to apply to the officers and crews of enemy mer- 
chant vessels which, though privately owned, operate under the instruc- 
tions of the state and — for all practical purposes — are integrated into the 
military effort at sea. Certainly they ought not to apply, and in fact have 
not been so interpreted as applying, to enemy merchant ships offering — or 
intending to offer — forcible resistance to capture. Such intent to offer 
forcible resistance, and thus to "take part in the hostilities," may not 
improperly be imputed to any enemy merchant ship bearing "defensive" 
armament. 58 

Hence, the present character of naval hostilities hardly permits the 
expectation that belligerents will give any greater effect in the future to 
these provisions of Hague XI than they have in the past. Instead, the 
expectation must be that enemy nationals making up the crews of belliger- 
ent merchantmen will be detained by the captor as prisoners of war, and 
as between the parties to the 1949 Geneva Convention Relative to the 
Treatment of Prisoners of War this is a status which — if detained — they 
are now entitled to receive. 59 Similarly, the officers and crews of enemy 
merchantmen who are nationals of a neutral state may also be detained as 

57 ". . . the provision that members of the crew who were enemy subjects might only be 
made prisoners if they refused to give parole was ipso facto modified by the practice followed 
during the First World War, according to which all enemy civilians of military age could be 
prevented from returning home, and could be interned. Accordingly, all the belligerents in- 
terned the enemy crews of captured enemy merchant- vessels. ' ' Oppenheim-Lauterpacht, op. cit. , 
p. Z67. A similar practice obtained throughout the 1939 war, though the detention of enemy 
crew members of captured belligerent merchant vessels frequently resulted in their receiving 
the status of prisoners of war rather than that of interned enemy aliens. In the past the problem 
of the status to be accorded detained enemy merchant seamen has frequently been complicated 
by the fact that in some states the merchant marine may be taken over by the state, and the 
personnel may even be included within the armed forces. In this latter case the status of the 
individuals when captured is clear — i. e., they are entitled to the protection accorded prisoners 
of war. But in those states where the personnel of the merchant marine remained civilians the 
captor has been free to treat them simply as interned enemy aliens. Even further, the civilian 
personnel of the merchant marine have been frequently deprived of the protection accorded by 
Hague Convention X (1907) to the sick, wounded and shipwrecked at sea. As will presently 
be noted, the 1949 Geneva Conventions have altered this situation. 

58 None of the observations made in the text above are immediately apparent from the actual 
wording of Articles 5-8 of Hague XI, for these articles speak only of "enemy merchantships" 
and of the deprivation of the benefits contained therein when "taking part in the hostilities." 
Yet it seems clear that the Convention was to apply only to privately owned merchant ships 
of the enemy. Furthermore, belligerents have interpreted — and not unreasonably — any of the 
acts indicated above as indicative of taking part in the hostilities. See also, in this connection, 
pp. 57-70. 

59 Article 4A (5) of that Convention provides that among the categories of individuals 
entitled to receive the status of prisoners of war are: "Members of crews, including masters, 
pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties 
to the conflict, who do not benefit by more favorable treatment under any other provisions of 

113 



prisoners of war if the vessel on which they are serving has taken any part 
in the hostilities prior to capture. But if the enemy merchantman has 
abstained from any participation in the hostilities prior to capture, and in 
particular has not attempted to offer any resistance to the captor, the 
officers and crew who are nationals of a neutral state normally are not to 
be made prisoners of war. 60 

The civilian passengers carried on board enemy merchant vessels may be 
composed of nationals of the enemy state as well as of neutral states. If 
they are nationals of the enemy state, and have refrained from any participa- 
tion in the hostilities prior to the capture of the vessel, they are normally 
not to be made prisoners of war. However, as enemy nationals they are 
subject to detention by the belligerent into whose hands they fall; and 
under exceptional circumstances they may even be treated as prisoners of 
war. 61 On the other hand, the nationals of a neutral state on board cap- 
international law." — The "other provisions of international law" is a reference to Articles 5-8 
of Hague XI. In view of the doubtful validity today of the latter articles, at least as they apply 
to enemy nationals, it may be assumed that the status of prisoners of war will prevail with 
respect to enemy nationals making up the personnel of enemy merchant ships. It should also 
be pointed out that Article 4A (5) of the 1949 Convention on prisoners of war deals with the 
personnel of enemy civil aircraft in the same manner as with the crew of enemy merchant ships. 
Unless entitled to more favorable treatment under any other provisions of international law 
the crew of enemy civil aircraft are to be made prisoners of war. In this instance, however, 
the "other provisions of international law" are non-existent. For this reason it may be con- 
tended that, in principle, the rules governing the status and treatment of individuals taken 
from enemy merchant vessels apply, mutatis mutandis, to the personnel taken from the civil 
aircraft of an enemy (see Law of Naval Warfare, Article 512.). At the same time, it may be noted 
that the 1913 Rules of Aerial Warfare (Article 36) would have granted belligerents substan- 
tially greater power over the crew and passengers of enemy civil aircraft than had theretofore 
been accorded in the case of enemy merchant vessels. Not only would these draft rules have 
permitted making prisoners of war of all enemy nationals composing the crew, but neutral 
nationals making up the crew of enemy civil aircraft would also be liable to detention as prison- 
ers of war unless signing a written undertaking not to serve in any enemy aircraft while hostili- 
ties lasted. Passengers found to be of enemy nationality and fit for military service could be 
made prisoners of war. In addition, passengers found to be in the "service of the enemy" 
could be made prisoners of war, regardless of nationality. Finally, a belligerent could hold 
as prisoner of war any member of the crew of an enemy civil aircraft or any passenger whose 
service in a flight had been of special and active assistance to the enemy (and see generally, 
Spaight, op. cit., pp. 41 1-4). 

60 In practice, belligerents have not detained — either as prisoners of war or as "civil prison- 
ers" — nationals of neutral states serving as crew members on board enemy merchantmen, if not 
found to have participated in acts of hostilities against the captor. But it is fairly well estab- 
lished that release is dependent upon the abstention from committing hostile acts or from par- 
ticipating in such acts. On the other hand, it follows from Article 4A (5) of the 1949 Con- 
vention on prisoners of war that if the nationals of neutral states serving on board belligerent 
merchantmen are detained they are to receive the status of prisoners of war. 

61 E. g., if officials of the enemy state. — As between the parties to the 1949 Convention 
Relative to the Protection of Civilian Persons it would appear that such enemy nationals as 
are found on board captured enemy merchant vesesls as private passengers are entitled to the 
status of "protected persons." The first paragraph of Article 4 of the Convention on civilian 

114 



tured enemy merchant vessels as passengers are not to be made prisoners of 
war unless they have previously participated in acts of hostility against 
the captor. Nor are they to be detained by the captor any longer than 
proves necessary, the captor being under the obligation to release such 
nationals of neutral states as expeditiously as is possible. 62 

It has already been observed that neutral merchant vessels may acquire 
enemy character by undertaking to perform any one of several services on 
behalf of a belligerent. In the more serious forms of unneutral service, 
where the neutral vessel takes a direct part in the hostilities or acts in any 
manner as a naval auxiliary to an enemy's forces, it may be assimilated to 
an enemy warship and rendered liable to attack on sight. There can be 
little question that if the personnel of such vessels fall into the hands of 
the other belligerent they are subject to detention as prisoners of war. 63 

persons states: "Persons protected by the Convention are those who at a given moment and 
in any manner whatsoever, find themselves in case of a conflict or_occupation in the hands of 
a Party to the conflict or Occupying Power of which they are not nationals." The same 
article goes on to declare that persons protected by the prisoners of war Convention or the Con- 
vention relating to the wounded, sick and shipwrecked at sea "shall not be considered as pro- 
tected persons within the meaning of the present Convention." 

62 Law of Naval Warfare, Article 51Z. In addition to participation in acts of hostility com- 
mitted against the captor prior to seizure, it seems reasonably clear that nationals of a neutral 
state on board a captured enemy merchant vessel as passengers may be made prisoners of war 
if found to be in the service of the enemy. 

63 It has occasionally been urged that the crews of neutral vessels taking a direct part in the 
hostilities may even be liable to punishment as war criminals. But this opinion would seem 
justified only where such vessels undertake offensive operations directly aimed against the war- 
ships or merchantmen of an enemy — and this will prove exceedingly rare. Hyde (op. cit., p. 
2.066) distinguishes between neutral vessels "primarily devoted to the military service of a 
belligerent" and those neutral vessels taking part in hostilities but "not given over to a belli- 
gerent service." Whereas the crews of the former may be treated as prisoners of war Hyde 
would permit the crews of the latter to be dealt with "summarily" — presumably meaning as 
war criminals. The distinction is not easy to follow, since a vessel of neutral registry that 
takes part in the hostilities is always acting — in a broad sense — in the "military service of a 
belligerent' ' — unless, of course, it is undertaking purely private acts of depredation in the manner 
of a pirate vessel. — In any event, a distinction should be carefully drawn between neutral 
merchant vessels acquiring enemy character through acts of unneutral service, and whose crew 
members are liable to treatment as prisoners of war, and neutral vessels acquiring enemy 
character — whether by committing acts of unneutral service or other acts — but whose crew 
members are not subject to detention as prisoners of war. The acquisition of enemy character 
on the part of a neutral merchant vessel does not necessarily mean that the captor has a right 
to treat members of the crew bearing neutral nationality as prisoners of war. Indeed, it is 
only exceptionally that such treatment may prove warranted, i. e., when the neutral vessel 
has by its actions identified itself with the armed forces of a belligerent. Acts of unneutral 
service which do not result in such identification may nevertheless result in the neutral vessel 
acquiring enemy character and rendering it liable to capture. But a neutral vessel acting 
under belligerent orders or direction does not, for that reason alone, give the belligerent 
capturing it the right to make prisoners of war those members of the crew as are nationals 
of a neutral state. In short, the imputation of enemy character to neutral merchant vessels 
is not to be taken as an indication that the officers and crews of such vessels, when captured, 
may therefore be made prisoners of war. 

399334—57 -9 115 



There is surprisingly little guidance of a specific character for the treat- 
ment of prisoners of war while detained on board a belligerent warship. 
The customary rule that they must be treated in a humane manner fails to 
indicate with any precision the specific duties and rights of the captor. 
For those states that are parties to the 1949 Geneva Convention Relative to 
the Treatment of Prisoners of War it is apparent that the general obligations 
laid down for the protection of prisoners of war in Articles 12. through 16 
must be complied with, at least to the degree that these obligations are 
relevant to the circumstances attending internment on board belligerent 
warships. 64 But these latter provisions are of a very general character and 
consequently leave unanswered many questions that may well arise in the 
course of operations at sea. Doubtless a belligerent must refrain either 
from imposing unnecessary hardships upon prisoners of war interned on 
board his warship or from subjecting prisoners to unnecessary danger. 
Nevertheless, the fulfillment of these obligations, given the facilities of 
warships and the circumstances characterizing naval operations, may 
present numerous difficulties. 65 Of course, once prisoners of war are landed 
they immediately become subject to the detailed provisions relating to 
prisoners of war as are set out in the relevant Geneva Convention of 1949. 

64 In general these Articles provide that prisoners of war are in the hands of the enemy power 
though not of the individuals or military units who have captured them, that they must be 
humanely treated, that no act must be taken against them which would cause death or seriously 
endanger their health, that they must not be made the object of measures of reprisal, that they 
are entitled to respect for their persons, honour, and sex, that they must be accorded proper 
maintenance and medical attention, and that they must be granted equality of treatment with- 
out any adverse distinction based on race, nationality, religious belief or political opinions. 

63 These difficulties are hardly met by the observation that "the propriety of exposing pris- 
oners taken at sea to great personal danger or hardship would depend upon whether, under the 
particular circumstances, the captor had the right to deprive them of the safeguards of their 
own craft without substituting others of substantial value, a question of which the solution 
might hang upon the propriety of the measures by which capture was effected." Hyde, op. 
cit.y p. i.o6j. In the case of enemy warships that have been destroyed there is no question of 
the right of a belligerent to deprive enemy personnel "of the safeguards of their own craft 
without substituting others of substantial value." The question does arise, however, with 
respect to enemy merchant vessels. In a strict sense the obligation of the captor to place the 
crews of such vessels in a "place of safety" prior to destroying enemy prizes may be interpreted 
as forbidding destruction when the warship itself does not constitute a place of safety — due 
either to the operations upon which it is engaged or to the nature of the warship itself. Even 
so, this is surely a counsel of perfection and one which belligerents can hardly be expected to 
follow, even under far more ideal conditions than those presently characterizing naval war- 
fare. — It is, in fact, hard to avoid the conclusion that what is "unnecessary" (hence forbidden) 
in the hardships or dangers imposed upon prisoners of war carried on board warships must 
largely be judged by the facilities of the particular warship and the military operations it may 
be required to complete prior to landing the prisoners of war. In a way, this is only to say 
that at sea the military necessities of the belligerent may take priority over the comfort and 
safety of prisoners of war. These remarks are themselves far too broad for the kind of guidance 
that may be considered useful, though more pointed observations on the duties of the captor 
at sea do not appear possible. 

116 



2.. Wounded, Sick and Shipwrecked (The 1949 Geneva Convention For 
the Amelioration of the Condition of Wounded, Sick, and Shipwrecked 
Members of Armed Forces at Sea). 

Prior to the conclusion in 1949 of the Geneva Convention for the Amelio- 
ration of the Condition of the Wounded, Sick and Shipwrecked Members of 
Armed Forces at Sea the rules relating to the protection of the sick and 
wounded at sea were contained in Hague Conventions III (1899) and X 
(1907). 66 On the whole, it was the latter Convention that was recognized 
by the belligerents as applicable in the two World Wars. However, dis- 
satisfaction with a number of the provisions of Hague X, and an awareness 
of the necessity for its revison and expansion to account more satisfactorily 
for changing conditions, had been expressed even before the close of the 
1914 war. 67 During the second World War this need for revising and ex- 
panding the provisions of Hague X became even more clearly apparent, 
despite the efforts already made by the belligerents to interpret and adapt 
the Convention to some of the novel circumstances characterizing modern 
naval warfare. 

As between the states that are parties to the 1949 Convention, the latter 
replaces Hague Convention X. 68 Although a number of the provisions of 
the 1949 Convention closely adhere to the rules laid down in the preceding 
convention, many significant modifications have been made and entirely 
new provisions added which reflect recent experience. An analysis of the 
present legal regime governing the protection of the sick, wounded and 
shipwrecked at sea must properly concentrate upon these changes. At the 
same time, it would appear only reasonable — and realistic — to avoid treat- 
ing the 1949 Convention quite apart from the experience of the two World 



66 The 1899 Convention represented the first successful adaptation to naval warfare of the 
principles of the 1864 Geneva Convention for the Relief of the Wounded and Sick of Armies 
in The Field. In 1906 the Convention of 1864, applicable to land warfare, was revised and, as 
a consequence, in the following year (1907) the 1899 Convention dealing with sea warfare was 
also revised to bring it again into accord with the more recent Convention on the sick and 
wounded in the field. As between the parties to the tenth Hague Convention of 1907, the latter 
served to replace the earlier convention concluded in 1899. But some states — e. g., Great 
Britain — remained formally bound by the earlier convention, though in practice it was accepted 
that the 1907 Convention was authoritative for the belligerents. 

67 In 192.9 the 1906 Geneva Convention on the wounded and sick in the field was revised, but 
the revision of the 1907 Convention dealing with naval warfare never got beyond the stage 
of draft proposals by the time World War II broke out. 

68 Article 58 of the 1949 Convention declares that in relations between the High Contracting 
Parties "the present Convention replaces the Xth Hague Convention of October 18, 1907, for 
the adaptation to Maritime Warfare of the principles of the Geneva Convention of 1906 . . ." — 
To date the most detailed analysis of the 1949 Geneva Convention for the Amelioration of the 
Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea is that of 
Raoul Genet, "La Revision de la X Convention de La Haye Relative a la Guerre sur Mer," 
Revue Internationale Francaise de Droit des Gens, Vols. 18 (1949), pp. 30-40, 160-6, 19 (1950), pp. 
46-60, 131-43, zo (1951), pp. 3Z-7, 181-8, 331-40, zi (1951), pp. 31-40. 

117 



Wars, and the extent to which belligerents have indicated that they are 
willing to subordinate possible military advantage to a humanitarian 



cause. 69 



a. The Wounded, Sick and Shipwrecked 
One of the principal assumptions upon which Hague Convention X 
(1907) had been based was that only those combatants sick or wounded as 
a result of hostilities at sea need be protected. 70 On this assumption the 
chief function of hospital ships was to accompany the warships of bel- 
ligerent fleets and to provide assistance at the scene of action to rescue 
survivors and to treat the wounded. In modern naval warfare this func- 
tion — while not yet obsolescent — has become subordinated to the task of 
transporting casualties suffered as a result of operations on land. 71 It has 
therefore become increasingly important to redefine — and, in so doing, to 
broaden — the categories of sick and wounded combatant personnel entitled 
to receive the benefits conferred by convention upon the sick and wounded 
at sea. In addition, the attack and destruction of enemy merchant shipping 
no longer permits the sanguine assumption that the wounded and ship- 
wrecked at sea will be confined to the combatant naval forces of bel- 
ligerents. 72 



69 "It is axiomatic," one writer has observed in a survey of hospital ships during World War 
II, "that in the present state of international law it is essential to preserve some balance between 
the humanitarian benefit to be gained by an alteration in the law and the military advantage 
thereby conferred on one of the belligerents: if this balance is seriously disturbed the other side 
will certainly seek and find a pretext for denunciation." J. C. Mossop, "Hospital Ships In the 
Second World War," B. Y. I. L., 2.4 (1947), p- 400. These words, written in the context of 
proposals for a new convention to replace Hague X, are relevant to a consideration of the 1949 
Convention. Doubtless, the provisions of the 1949 Convention are binding upon the states 
that ratify ic, whatever the military advantages that may be sacrificed by its observance, and 
Article 1 declares that: "The High Contracting Parties undertake to respect and to insure respect 
for the present Convention in all circumstances." Nevertheless, the clarity of the legal obliga- 
tion not to depart from the Convention for reason of military advantage does not detract from 
the possibility — and that is all it can be regarded — that belligerents may be reluctant to meet 
certain duties laid down in the Convention when such duties press hard upon considerations 
of military advantage. The occasions when this may be so can be surmised only on the basis 
of known experience. Besides, a substantial number of the provisions themselves permit the 
operation of military necessity as a justification for departing from behavior that must other- 
wise be observed. Finally, it need hardly be pointed out that in the interpretation of the pro- 
visions of the 1949 Convention — a number of which are far from being as clear and specific as 
is to be desired in an international convention — belligerents will not be unmindful of their 
respective military requirements. The latter reason alone constitutes sufficient justification 
for bearing in mind the experience of the two World Wars in considering the 1949 Convention. 

70 See Mossop, op. cit., pp. 398-400, for a lucid analysis of the outlook of the framers of Hague ' 
Conventions III (1899) and X (1907). 

71 A task in which the great majority of hospital ships were engaged in the two World Wars. 

72 The civilian at sea was altogether excluded from the benefits of Hague X, which applied 
only to "sailors and soldiers on board, when sick or wounded, as well as other persons officially 
attached to fleets or armies . . ." — It is of course true that even prior to the 1949 Convention 
belligerents had recognized the necessity of expanding the categories of sick and wounded 

118 



The 1949 Convention clearly abandons the assumption which underlay 
the earlier Convention and recognizes that the most important function of 
hospital ships will be the transport of casualties resulting from warfare on 
land. The individuals who are therefore entitled to receive the benefits of 
the new Convention include the following categories: 73 members of the 
armed forces of a Party to the conflict, as well as members of militias or 
volunteer corps forming part of such armed forces; members of other militias 
and members of other volunteer corps, including those of organized resist- 
ance movements which belong to a Party to the conflict and which comply 
with certain conditions; 74 members of regular armed forces who profess 
allegiance to a Government or an authority not recognized by the Detaining 
Power; persons who accompany the armed forces without actually being 
members thereof, provided they have received authorization from the 
armed forces which they accompany; and members of the crews of the 
merchant marine and the crews of civil aircraft of the Parties to the conflict 
who do not benefit by more favorable provisions of international law. 75 

So far as warfare at sea is concerned, the last of the above categories may 
be regarded as the most significant of the extensions made by the 1949 
Convention. (However, it may be pointed out that during World War II 
the belligerents were already allowing the carriage of sick and wounded 
members of the merchant marine in hospital ships.) On the other hand, 
Article 13 of the 1949 Convention fails to include civilians among those 
entitled to receive the benefits of the Convention, though this omission is 
tempered by a later provision, Article 35, that hospital ships shall not be 
deprived of the protection due to them for the reason that the humanitarian 

entitled to be carried on board hospital ships. Nevertheless, the evolution that accompanied — 
in this respect — the two World Wars still left unsettled many and controversial questions, even 
as regards individuals claiming to be assimilated to the armed forces of belligerents. 

73 Article 13. This article makes the same enumeration as is made in Article 4 (A) of the 
Prisoners of War Convention. Apart from the categories enumerated in Article 4 (B) of the 
Convention relating to prisoners of war, which are not relevant to the present analysis, it 
will be apparent that any individual entitled to the status of prisoner of war is entitled to 
receive the benefits of the Convention on the sick, wounded and shipwrecked. In a formal sense 
the converse appears equally true (since Article 16 provides that "the wounded, sick and ship- 
wrecked of a belligerent who fall into enemy hands shall be prisoners of war"), though as will 
presently be seen the Convention seems to provide that persons other than those entitled to the 
status of prisoners of war may be accorded at least certain benefits granted the wounded and 
shipwrecked. 

74 These conditions are: that of being commanded by a person responsible for his subordinates; 
that of having a fixed distinctive sign recognizable at a distance; that of carrying arms openly; 
and that of conducting operations in accordance with the laws and customs of war. 

75 One further category not listed above includes individuals making up a so-called levee en 
masse. The naval equivalent of a levie en masse has been thus defined in the Oxford Manual of 
Naval Warfare, 1913: "The inhabitants of a territory which has not been occupied who, upon 
the approach of the enemy, spontaneously arm vessels to fight him, without having had time 
to convert them into war-ships . . . shall be considered as belligerents, if they act openly 
and if they respect the laws and usages of war." 

119 



activities of such vessels have been extended to the "care of wounded, sick 
or shipwrecked civilians." 76 

According to Article 12. the categories of individuals to whom the Con- 
vention is applicable "who are at sea and who are wounded, sick or ship- 
wrecked, shall be respected and protected in all circumstances, it being 
understood that the term 'shipwreck' means shipwreck from any cause 
and includes forced landings at sea by or from aircraft." 77 The Parties to 
the conflict in whose power such persons may be are obliged to care for 
them and to treat them in a humane manner, without any adverse distinc- 
tion founded on sex, race, nationality, religion, political opinions, or any 
other similar criteria. 78 

In a general sense, almost all of the detailed rules laid down in the 1949 
Convention may be considered as the application of the general duty to re- 
spect and protect the wounded, sick or shipwrecked. Thus the rules re- 
lating to the respect and protection that must be accorded hospital ships 
(which make up the heart of the Convention) can have no other purpose 

76 Does this refer to civilians wounded, sick or shipwrecked because of action at sea, or to 
civilians wounded and sick from any cause, or to both? It is surely reasonable to assume that 
civilians — of whatever nationality — wounded, sick or shipwrecked as a result of naval action 
are entitled to receive the benefits of the humanitarian activities of hospital ships, even though 
this is not expressly provided for in the Convention. More debatable, however, is the presence 
on board hospital ships of sick or wounded enemy civilians that have been taken on in port. 
Mossop (pp. cit., p. 400) states that during World War II the protection of hospital ships was 
extended to the sick and wounded wives and dependents of members of the armed forces, and 
goes on to suggest that "it is essential as a matter of both logic and common humanity to 
extend the protection offered by hospital ships to sick and wounded civilians when the Con- 
vention is next revised." Yet it seems clear that the 1949 Convention has not been so extended, 
save perhaps through the backdoor of Article 35. And Article 35 is itself, in this respect, 
somewhat anomalous. For if civilians are not included within the categories entitled to re- 
ceive the benefits of the Convention then what is the precise meaning of the stipulation that 
hospital ships carrying wounded, sick or shipwrecked civilians are not to be denied the protec- 
tion normally due to them? May a belligerent at least object to such carriage, and ultimately 
take some sort of action if it nevertheless continues as a regular practice? This ambiguity 
and potential source of confusion with respect to a highly important matter must be regarded as 
a serious defect in the drafting of the 1949 Convention. 

77 But the passage cited above is preceded by the words "members of the armed forces and 
other persons mentioned in the following Article (i. e., Article 13)." Thus Article 12. does 
not formally extend the benefits of the Convention beyond those categories earlier enumerated. 
The fact that "shipwreck" is defined as meaning "shipwrecked from any cause" does not alter 
this situation, since whatever the cause it still applies only to the persons mentioned in Article 
13. And here again the restrictiveness of the wording so far as wounded, sick or shipwrecked 
civilians are concerned must be noted. 

78 The care and humane treatment to be accorded the sick, wounded and shipwrecked is 
further elaborated in Article 12. as follows: "Any attempts upon their lives, or violence to 
their persons, shall be strictly prohibited; in particular, they shall not be murdered or extermi- 
nated, subjected to torture or to biological experiments; they shall not wilfully be left without 
medical assistance and care, nor shall conditions exposing them to contagion or infection be 
created. — Only urgent medical reasons will authorize priority in the order of treatment to be 
administered. — Women shall be treated with all consideration due to their sex." 

120 



than that of insuring the respect and protection of the wounded, sick or 
shipwrecked. Nevertheless, it is useful to distinguish — if only for reasons 
of convenience — between the rules directly applicable to, and enjoining the 
respect and protection of, the wounded, sick or shipwrecked, and the rules 
designed to accomplish this same end by enjoining the respect and protec- 
tion of hospital ships, sick bays, medical transports and the religious, medi- 
cal and hospital staffs of captured vessels. Within the former category 
may be placed the obligation of the parties to the 1949 Convention to take 
all possible measures after each engagement at sea— and without delay — 
' ' to search for and collect the shipwrecked, wounded and sick, to protect 
them against pillage and ill-treatment, to ensure their adequate care, and to 
search for the dead and prevent their being despoiled." 79 For this purpose 
the Parties to the conflict may appeal to the charity of commanders of 
neutral merchant vessels, yachts or other craft, to take on board and care 
for wounded, sick, or shipwrecked persons, and to collect the dead; and 
neutral vessels responding to this appeal shall enjoy special protection and 
facilities to carry out such assistance. 80 

The respect and protection owed to the wounded, sick or shipwrecked 
does not extend to immunity from capture, however. In the 1949 Con- 
vention, as in the earlier Convention (X) of 1907, 81 all warships of a bellig- 
erant have the right to demand that the wounded, sick or shipwrecked — 
regardless of nationality — on board hospital ships, as well as merchant ves- 
sels and other craft, shall be surrendered. 82 In the 1949 Convention, 
though, the belligerent right of removal has been qualified by the stipula- 
tion that removal is justified "provided that the wounded and sick are in a 
fit state to be moved and that the warship can provide adequate facilities 
for necessary medical treatment." 83 Apart from this, it should be made 



79 Article 18. On the above obligation, also see pp. 71-3. Article 19 details the procedur e 
to be followed in establishing the identification — as soon as possible — of each shipwrecked > 
wounded, sick or dead person of the adverse Party. This information is to be recorded and 
forwarded to the information bureau described in Article izx of the prisoners of war Conven- 
tion. Article 2.0 contains further prescriptions regarding the handling of the dead and the 
conduct of burial at sea. 

80 Article 2.1. At the same time Article 7.1 goes on to provide that although neutral vessels 
may not be captured on account of such transport, "in the absence of any promise to the contrary, 
they shall remain liable to capture for any violations of neutrality they may have committed." 

81 Article 12. 

82 Article 14. It is of interest to observe that Article 14 speaks of the right of "all warships 
of a belligerent Party," whereas most of the other provisions of the Convention speak only 
of "Party to the conflict." Presumably the reason for the different wording of Article 14 is 
that the right of removal extends to neutral vessels as well (neutral warships and military 
aircraft, of course, being excluded) and that in order to interfere in such manner with neutral 
vessels a formal state of belligerency is required. But as between the "Parties to the conflict" 
this formal condition is not required for the operation of the Convention (see pp. 134-5). 

83 This qualification, it will be noted, does not extend to the shipwrecked. How effective 
the qualification contained in Article 14 will prove in practice is quite another question. 

121 



clear that the belligerent right of removal 84 applies to all hospital ships — 
whether belligerent or neutral — as well as to all other vessels and aircraft 
which may be carrying the sick, wounded or shipwrecked, the only excep- 
tions being neutral warships and neutral military aircraft. 

The wounded, sick and shipwrecked of a belligerent who fall into enemy 
hands shall be considered, in accordance with Article 16 of the 1949 Con- 
vention, "prisoners of war, and the provisions of international law con- 
cerning prisoners of war shall apply to them. ' ' 85 The captor may — accord- 
ing to circumstances — hold them, convey them to his own country, to a 
neutral port, or even to an enemy port. But if returned to their home 
country they may not serve for the duration of the war. 

The disposition of the wounded, sick or shipwrecked who are landed in 
neutral territory either by neutral warships (and neutral military aircraft) 
or by belligerent warships — with the consent of the local authorities — is 
dealt with in Articles 15 and 17. 86 In both cases, the neutral state must 
insure, where so required by international law, that these persons take no 

84 The objection occasionally taken in the past to the belligerent right of removal has been 
based, in part, upon the contention that it is both unnecessary and inhumane. Belligerents 
apparently made no use of it during World War I, but in World War II the German hospital 
ships Tubingen and Gradisca were taken in to Allied ports, and the enemy individuals carried 
on board made prisoners of war. The vessels had earlier been permitted to pass through 
Allied lines in the Adriatic in order to take on sick and wounded in Salonica, the diversion taking 
place on the outward voyage. See Mossop (of cit., p. 405), who, in relating this incident, 
declares that "a high percentage were only slightly wounded and the great majority were 
considered likely to be fit for active service within twelve months. This action brought forth 
no protest from the German Government, who considered it justified by the terms of the Con- 
vention." In the Pacific theatre no similar incidents appear to have occurred. — Objection to 
the belligerent right to remove the sick, wounded and shipwrecked from neutral vessels has 
been — in the past — merely one facet of the broader objection made against the removal at sea 
of any enemy persons from neutral vessels, a problem that is dealt with later (see pp. 32.5—9). 
It is sufficient to observe here that the belligerent right to remove the sick, wounded and ship- 
wrecked from neutral vessels is firmly established in law. 

85 Following Article 14 of the 1907 Convention, Article 16 of the 1949 Convention is a further 
indication — if such were needed — that the intent was to make the categories of individuals 
to which the Convention shall apply identical with those individuals liable to treacment as 
prisoners of war. It is true that Article 16 is prefaced by the words "subject to the provisions 
of Article ix," but this seems only for the purpose — as Genet (of. cit., 20 (195 1), p. 185) points 
out — of defining with greater precision the extent of protection due the sick, wounded or ship- 
wrecked who fall into the hands of an enemy. Yet it is difficult — for reasons already noted — 
to take Article 16 quite literally, since hospital ships may be carrying sick, wounded or ship- 
wrecked who are not entitled to the status of prisoners of war, and a belligerent in receiving such 
enemy individuals need not — and perhaps even ought not — treat them as such. 

86 Articles 15 and 17, concerning the problem of neutral asylum to naval forces, may be cited 
in full: 

"Article 15. If wounded, sick or shipwrecked persons are taken on board a neutral warship 
or a neutral military aircraft, it shall be ensured, where so required by international law, that 
they can take no further part in operations of war. 

Article 17. Wounded, sick or shipwrecked persons who are landed in neutral ports with the 
consent of the local authorities, shall, failing arrangements to the contrary between the neutral 

122 



further part in operations of war. But the Convention does not provide 
for the disposition to be made of the wounded, sick or shipwrecked who are 
brought into neutral ports by neutral merchant ships. Nor does it provide 
for the disposal of shipwrecked members of armed forces who reach a 
neutral coast by their own efforts. This silence in the 1949 Convention 
may be taken as reinforcing the opinion — which is believed to be correct — 
that the neutral state is under no obligation to resort to internment in these 
two latter cases. 87 

b. Hospital Ships 
The 1949 Convention permits the use of three types of hospital ships. 

and the belligerent Powers, be so guarded by the neutral Power, where so required by inter- 
national law, that the said persons cannot again take pare in operations of war. 

The costs of hospital accommodation and internment shall be borne by the Power on whom 
the wounded, sick, or shipwrecked persons depend." 

In principle, Articles 15 and 17 follow Articles 13 and 15 of Hague X, save for the introduction 
of the phrase "where so required by international law." The meaning of the latter phrase is 
not free from a certain ambiguity, however. The traditional rules governing neutral asylum 
to naval forces are clear to the effect that the neutral state has a duty to intern combatant 
personnel that are either brought into neutral ports by its own warships or by the warships of 
a belligerent (the neutral so consenting). But Professor Kunz has suggested that in this phrase 
we see "the impact of changes in the law of neutrality, brought about by treaties such as the 
United Nations Charter." "The Geneva Conventions of August iz, 1949," in Law and Politics 
in the World Community, p. 2.90. If this suggestion is correct, then these traditional rules govern- 
ing neutral asylum are subject in their operation to a significant qualification. Genet (op. cit. t 
zo (195 1), p. 184) interprets the phrase as resulting from the unresolved question as to whether 
or not the duty of internment should extend only to the sick, wounded or shipwrecked picked 
up by neutral warships on the high seas, though not within the territorial waters of the neutral 
state. In opposition to the view that the duty of internment applies wherever such persons 
are rescued by neutral warships, it has been held that once within neutral territorial waters the 
wounded or shipwrecked have escaped the risk of being taken by the enemy and hence if then 
taken on board neutral warships need not be interned. If this controversy is in fact the reason 
for inserting the phrase "where so required by international law' in Articles 15 and 17, all 
that can be said is that these articles have left the controversy where they found it. 

87 To this effect see, for example, Oppenheim-Lauterpacht (op. cit., pp. 734-5), where the 
further case is included of belligerent vessels unlawfully attacked in neutral territorial waters, 
and the combatant personnel of these vessels reach the neutral shore. Also Higgins and 
Colombos, op. cit., pp. 43Z-3, and J. A. C. Gutteridge, "The Geneva Conventions of 1949," 
B. Y. I. L., 2.6 (1949), p. 309. It must be acknowledged, however, that on the basis of the 
two World Wars neutral states have demonstrated no unanimity with respect to the disposition 
of the two cases cited in the text above. Yet this very disparity of state practice would appear 
itself as a further indication that there is no recognized neutral duty of internment. And the 
fact that the 1949 Convention does not specifically provide for these cases — despite the questions 
raised since the conclusion of Hague X — only serves to add further support to this conclusion. 
Nor is it useful, in this respect, to examine Hague Convention XIII (1907), since this instrument 
also fails to provide any guidance to the cases under consideration. But it is essential to dis- 
tinguish these cases from the situation in which a belligerent warship, carrying enemy wounded 
or shipwrecked aboard as prisoners of war, is interned by a neutral state for having failed to 
leave one of the latter's ports in due time. In this instance the internment of the officers and 
crew of the warship must be accompanied by the internment of the prisoners of war carried 
on board. 

123 



First and foremost are military hospital ships, defined as ships specially 
built or equipped by the Powers solely to assist, treat and transport the 
wounded, sick and shipwrecked. It is declared that military hospital 
vessels may "in no circumstances be attacked or captured, but shall at all 
times be respected and protected, on condition that their names and descrip- 
tions have been notified to the Parties to the conflict ten days before those 
ships are employed." 88 The notification must include the following 
characteristics: registered gross tonnage, the length from stem to stern, 
and the number of masts and funnels. 89 The same protection and exemption 
from capture is accorded to private enemy hospital ships — utilized by 
National Red Cross Societies, by officially recognized relief societies or by 
private persons — on condition that they have been given an official com- 
mission by the Party to the conflict on which they depend and have com- 
plied with the provisions concerning notification applicable to military 
hospital ships. 90 Finally, the protection and exemption granted to military 
hospital ships are likewise granted to private neutral hospital vessels — 
utilized by National Red Cross Societies, officially recognized relief societies, 
or private persons of neutral countries — on condition that they have placed 
themselves under the control of one of the Parties to the conflict, with the 
previous authorization of their own government, and have complied with 
the provisions concerning notification applicable to military hospital 
ships. 91 

Although the tenth Hague Convention permitted — at least by implica- 
tion — the conversion of merchant vessels into hospital ships, it contained 
no provisions concerning the case in which a belligerent might reconvert a 
hospital ship, that had earlier been a merchant vessel, once again to its 

88 Article 2.2.. The corresponding provision of Hague X, Article 1, merely required notification 
to the adverse Party before use. Genet (op. cit., zi (195Z), p. 31) points out in criticism of 
Article zz that with the speed of communications today, ships can be transformed into hospital 
vessels very quickly in order to carry out errands of mercy. The ten-day requirement may well 
mean that hospital ships converted and ready for use in a shorter period would have to suspend 
operations of a humanitarian character while waiting for a time limit to expire. — The respect 
and protection to be accorded hospital ships is extended, by Article Z3, to shore establishments 
entitled to the protection of the Geneva Convention for Amelioration of the Condition of the 
Wounded and Sick in Armed Forces in the Field. Bombardment or attack from the sea against 
such establishments is prohibited. 

89 A new provision, designed to facilitate identification. 

90 Article Z4 — which further declares that these ships must be provided with certificates from 
the responsible authorities, stating that the vessels have been under their control while fitting 
out and on departure. 

91 Article Z5. With respect to the protection of sick bays Article z8 of the 1949 Convention 
states: "Should fighting occur on board a warship, the sick-bays shall be respected and spared 
as far as possible. Sick bays and their equipment shall remain subject to the laws of warfare, 
but may not be diverted from their purpose so long as they are required for the wounded and 
sick. Nevertheless, the commander into whose power they have fallen may, after insuring 
the proper care of the wounded and sick who are accommodated therein, apply them to other 
purposes in case of urgent military necessity." 

124 



original use. Nor did Hague X deal with the problem regarding the 
places where conversion of vessels into hospital ships might legitimately 
be accomplished. A still further question left open by the tenth Hague 
Convention related to the minimum tonnage that might be required of 
hospital ships. During the two World Wars each of these questions 
provided ground for controversy between the belligerents. 92 The 1949 
Convention takes a long step forward in clarifying hitherto disputed issues. 
With respect to the tonnage required of hospital ships Article 2.6 of the 
Convention expressly extends protection to hospital ships "of any tonnage 
as well as to their lifeboats, wherever they are operating." Nevertheless, 
in order to insure the maximum comfort and security, the Parties to the 
conflict "shall endeavor to utilize, for the transport of wounded, sick and 
shipwrecked over long distance and on the high seas, only hospital ships 
of over 2.000 tons gross." 93 Earlier controversy over the question of 
reconversion is resolved in Article 33 of the new Convention by the stipula- 
tion that merchant vessels "which have been transformed into hospital 
ships cannot be put to any other use throughout the duration of hostili- 
ties." 94 No indication is given, however, as to the possible restrictions 
upon the places where the conversion of vessels into hospital ships might 
legitimately be carried out. It would appear that, in principle, the latter 
question must be governed by the consideration that belligerents need not 
recognize such conversion when it has clearly been effected for the purpose 

92 See Mossop (op. cit., pp. 403-4) for a consideration of these matters in World War II. Great 
Britain announced a lower limit of 3000 tons on hospital ships, though in practice it enforced — 
over German and Italian protests — a limit of 2.000 tons. However, in the case of the 1500 ton 
German hospital ship Freiburg the British Government, after first seizing the vessel, released 
her on the apparent ground that she was a bona fide hospital ship. In fact, Hague X did not 
provide any lower limit, and the British position appears to have been very doubtful on this 
point. In the Pacific theatre no lower limit was placed on the tonnage required of hospital 
ships in order to enjoy protection. As will be noted shortly in the text above, the question 
as to where conversion might legitimately take place is really a part of the larger question 
concerning conversions that have been made merely to avoid capture. The British Prize Court 
has long held that conversion made merely to avoid capture may nevertheless result in the 
seizure of a hospital ship so converted and her condemnation as lawful prize. In this connection 
Mossop cites the cases of the Ramb TV and the Rostock. The former, an Italian merchant vessel 
converted into a hospital ship while lying blocked in Massawa, was seized by British forces 
and taken into an Allied port. Later, however, the conversion was recognized as having been 
genuine and not made simply to avoid capture. The seizure of the Rostock, a German warship 
hastily converted into a hospital ship, was clearly a different matter. Not only was the vessel 
converted while lying in the besieged port of Bordeaux, but when intercepted was found to be 
carrying codes and engaging in weather reporting — activities which deprived her of the right 
of continued protection. 

93 This provision is purely optional. 

94 The widsom of this provision has been questioned by Genet (op. cit., 2.1 (1951), p. 38) as 
placing an undue restriction upon belligerents, who — instead — should be allowed to convert 
merchant vessels into hospital ships — and reconvert them back again — as the necessities of war 
may require. And Mossop (op. cit., p. 404), looking at World War II experience, expresses 
the opinion that "a prohibition against denotification is of little practical value." 

125 



of avoiding capture. 95 If this position is correct the decisive consideration 
will concern the purpose of conversion rather than the place where con- 
version is actually carried out, though the place of conversion may fre- 
quently provide an important indication of purpose (e. g., if conversion is 
carried out in a besieged port). 

By a novel provision in the 1949 Convention — Article 2.7 — the respect 
and protection accorded to hospital ships is further extended — subject to 
the requirements of notification — to "small craft employed by the State or 
by the officially recognized lifeboat institutions for coastal rescue opera- 
tions." But this extension of protection to coastal rescue craft is expressly 
subordinated to the "operational requirements" of the belligerents, a 
qualification that is not unlikely to limit severely the practical significance 
of the provision. 96 

It is not only at sea that hospital ships are granted exemption from 
capture. Article 19 of the 1949 Convention provides that exemption from 
capture shall be granted hospital ships caught in a port that has fallen into 
the hands of the enemy. "Any hospital ship in a port which falls into the 
hands of the enemy shall be authorized to leave the said port." 97 

The protection given hospital ships has always been dependent upon their 
not being used for any purpose other than to "afford relief and assistance to 
the wounded, sick and shipwrecked without distinction of nationality." 98 
To undertake to use hospital ships for what is clearly a military purpose 
would obviously constitute a serious breach of faith on the part of a bel- 
ligerent sanctioning such a practice. 99 Experience has shown, however, 
that the problem of defining those acts forbidden to hospital ships is not 
always an easy one. Not only is it difficult on occasion to determine the 
extent of the acts which, if performed, could be regarded as serving a 



95 Though even this principle — whose soundness ought not to be questioned — is not expressly 
enumerated in the 1949 Convention. In part, of course, it is met by the stipulation that hospital 
ships shall be "built or equipped . . . specially and solely with a view to assisting the wounded, 
sick and shipwrecked." 

86 On the small craft used for air-sea rescue purposes by the German Government off the British 
coast in 1940, and the refusal of the British Government to extend immunity to these craft — 
as well as to ambulance aircraft — see Mossop, op. cit., p. 403. The British argument that air- 
men shot down over the sea could not be considered as "shipwrecked" would no longer hold, 
since the 1949 Convention includes this newer category. But the British refusal to assimilate 
light craft engaged in rescue operations to hospital ships — thereby granting them special 
protection — for fear of intelligence activities, would still be clearly permissible under Article 
ij of the 1949 Convention. 

97 Article 19 has no counterpart in Hague X. — Article 32. of the 1949 Convention declares: 
"Vessels described in Articles rz., 2.4, Z5 and 2.7 are not classed as warships as regards their stay 
in a neutral port." On the conditions governing the stay of belligerent warships in neutral 
ports, see pp. 140-5. 

98 Article 30. 

99 And Article 30 of the 1949 Convention obligates the contracting parties "not to use these 
vessels for any military purpose." 

126 



military purpose — hence forbidden; even more difficult may be the deter- 
mination of acts which, though not supporting a military operation, are 
nevertheless forbidden to hospital ships. In an attempt to reduce future 
uncertainty in this regard Article 35 of the 1949 Convention lists certain 
conditions which shall not be considered as depriving hospital ships or 
sick bays of vessels of the protection due to them. These conditions ate: 

(1) The fact that the crews of ships or sick bays are armed for 
the maintenance of order, for their own defense or that of the sick 
and wounded. 

(2.) The presence on board of apparatus exclusively intended to 
facilitate navigation or communication. 1 

(3) The discovery on board hospital ships or in sick bays of 
portable arms and ammunition taken from the wounded, sick and 
shipwrecked and not yet handed to the proper service. 

(4) The fact that the humanitarian activities of hospital ships 
and sick-bays of vessels or of the crews extend to the care of 
wounded, sick or shipwrecked civilians. 

(5) The transport of equipment and of personnel intended 
exclusively for medical duties, over and above normal require- 
ments. 2 

Clearly, the presence on board hospital ships of any arms or communica- 
tions apparatus in excess of that allowed above will give rise to suspicion 
of abuse. Furthermore, equipment of any kind, save that intended exclu- 
sively for medical duties, ought not to be carried, however innocent it may 
appear. Nor should hospital ships be used to carry convalescent personnel. 
And although hospital ships are not to be considered as deprived of protec- 
tion because their humanitarian activities have been extended to wounded 
and sick civilians, it remains true that Article 35 does not contemplate such 
carriage as a regular practice. Finally, even though not being used for any 
military purpose, hospital ships must not act in such a manner as to hamper 
the movements of the combatants. It is probably due to the latter consid- 
eration that the removal of the wounded and sick by sea from a besieged or 
encircled area, and the passage of medical and religious personnel and equip- 



1 Paragraph i of Article 35 must be read with the second paragraph of Article 34, which de- 
clares that hospital ships "may not possess or use a secret code for their wireless or other means 
of communication." 

2 Both paragraphs 4 and 5 are novel, having no counterpart in Hague X. In practice, bel- 
ligerents have permitted the carriage of medical and religious personnel as passengers, whether 
going to or from the forces in the field. So also in the case of medical supplies and equipment 
intended for armies in the field, the practice appears to have been to allow hospital ships to 
carry such supplies and equipment on their outward voyage. Article 35 now formally sanctions 
these activities. 



127 



ment to such an area, is made dependent upon the express agreement of the 
parties to the conflict. 3 

In order to ensure that hospital vessels and small craft are not being used 
improperly, as well as to guarantee that the movements of the combatants 
will not be hampered even by legitimate activities, the Parties to the con- 
flict are given the right to control and search these vessels and small craft. 
Article 31 declares that the Parties to the conflict "can refuse assistance 
from these vessels, order them off, make them take a certain course, control 
the use of their wireless and other means of communication, and even de- 
tain them for a period not exceeding seven days from the time of intercep- 
tion, if the gravity of the circumstances so requires." A commissioner 
may be placed on board for a temporary period in order to see that the or- 
ders given hospital ships are carried out. Provision is also made in Article 
31 for placing neutral observers on board hospital ships, and this may be 
done either unilaterally or by agreement between the Parties to the conflict. 

It has always been true that if hospital ships are used to commit acts 
harmful to an enemy, and outside their humanitarian duties, the protection 
to which they are otherwise entitled ceases. Article 34 of the 1949 Con- 
vention reaffirms this rule, but at the same time provides that protection 
may cease ' ' only after due warning has been given, naming in all appropriate 
cases a reasonable time limit, and after such warning has remained un- 
heeded." The procedure thus laid down in Article 34 constitutes an inno- 
vation upon Hague Convention X (1907), which merely provided — without 
further qualification — that hospital ships were no longer entitled to 
protection if employed for the purpose of injuring the enemy. 4 



3 Article 18, paragraph 2.: "Whenever circumstances permit, the Parties to the conflict shall 
conclude local arrangements for the removal of the wounded and sick by sea from a besieged 
or encircled area and for the passage of medical and religious personnel and equipment on their 
way to that area." Mossop (pp. cit., pp. 405-6) relates two occasions during the 1939 war in 
which the German High Command sought to send a hospital ship through Allied patrol lines 
to a besieged port. In one of these instances the request was granted, though in the ocher it 
was denied for the reason that it would hamper the movements of the attacking forces. — No 
doubt belligerents will also be reluctant to grant removal of wounded and sick from a besieged 
area if the result will be to ease noticeably the burden of the defenders. 

4 Article 8. — The meaning of Article 34 is not altogether free from doubt, however. Pre- 
sumably, neither attack nor capture is permitted under Article 34 without prior "due warning." 
In the case of a hospital ship found — after search — to be carrying signalling equipment in excess 
of a reasonable need Article 34 would prohibit seizure of the vessel — at least if the phrase "only 
after due warning has been given" is to be interpreted literally. If so, this clearly represents 
a change from previous practice, and — it is submitted — an undesirable change. On the other 
hand, the effect of Article 34 need not prove to be a substantial deterrent to a belligerent intent 
upon avoiding its obligations. Article 34 does not render any more difficult the manufacture 
of unfounded charges; and these charges apparently may be followed by the sternest of meas- 
ures — including attack — provided only that a "reasonable time limit" is permitted in "appro- 
priate" cases. Paradoxically, the effect of Article 34 could very well be to forbid the immediate 
seizure of hospital ships, even though found upon search to be performing acts harmful to an 
enemy, but at the same time to provide no insurance against unwarranted attacks upon hospital 

128 



c. Religious, Medical and Hospital Personnel 

The religious, medical and hospital personnel of hospital ships and their 
crews must be respected and protected; they may not be captured during 
the time they are in the service of the hospital ship, whether or not there 
are wounded and sick on board. 6 If such personnel fall into the hands of 
the enemy they must be respected and protected, and the captor is to permit 
them to carry out their duties as long as is necessary for the care of the 
wounded and sick. They shall afterwards be sent back as soon as the 
commander-in-chief, under whose authority they are, considers it practi- 
cable; and on leaving the ship may take with them their personal property. 
However, should it prove necessary to retain some of these personnel owing 
to the medical or spiritual needs of prisoners of war, everything possible 
shall be done for their earliest possible landing. 6 

d. Medical Transports 

Among the provisions of the 1949 Convention that have no counterpart 
in the earlier tenth Hague Convention of 1907 are those dealing with 
medical transports and medical aircraft. Ships may be chartered for the 
purpose of transporting equipment exclusively intended for the treatment 
of wounded and sick members of armed forces or for the prevention of 
disease, provided that the particulars regarding their voyage have been 
notified to the adverse Power and approved by the latter. In order to 
ensure that these ships are not being misused the adverse Party retains the 
right to board them, though not to capture them or seize their equipment. 
Further, through prior agreement, neutral observers may be placed on board 
such ships to verify the equipment carried. 7 

Medical aircraft are defined in Article 39 of the 1949 Convention as 

ships by a belligerent that has been careful to observe the form of Article 34. Admittedly, these 
critical remarks would prove unjustified if, together with Article 34, adequate provision were 
made for an effective procedure whereby all charges of abuse could be made the subject of inquiry 
by an impartial third party. As will be seen (pp. 137-8), the 1949 Convention establishes a 
procedure of inquiry that may easily be frustrated by an unwilling belligerent. 

It is difficult to ascertain, therefore, to what extent Article 34 — and other relevant provisions 
of the 1949 Convention — will succeed in altering those practices built up during the two World 
Wars, and which have received the support of the majority of states. These practices may be 
summarized briefly. Save in the most exceptional of circumstances hospital ships suspected 
of abusing their privileged status were not to be attacked but rather to be visited and searched. 
If the result of visit and search was to confirm suspicions of abuse the vessel could be seized and 
taken into port for adjudication. Attack upon a hospital ship proved justified only if the 
attempt to visit and search was met by acts of forcible resistance on the part of the hospital ship 
itself. 

5 Article 36. 

6 Article 37. 

7 Article 38. A distinction must be drawn between the conditions governing the use of 
hospital ships in Articles zz, 14 and Z5 of the Convention and the conditions governing the 
use of medical transports in Article 38. With respect to the use of the latter there must be in 
each instance a special agreement concluded between the Parties to the conflict, whereas no 
such agreement is required in the case of hospital ships. 

129 



"aircraft exclusively employed for the removal of the wounded, sick and 
shipwrecked, and for the transport of medical personnel and equipment." 
The strict conditions governing the use of medical aircraft are not to be 
confused, however, with the far more liberal provisions governing the use 
of hospital ships. 8 The former are to be respected, and not to be made the 
object of attack, "while flying at heights, at times and on routes specifically 
agreed upon between the Parties to the conflict concerned." In each in- 
stance, therefore, the use of medical aircraft is made dependent upon a 
prior agreement whose purpose is to ensure that the adverse Party may 
exercise close control over such aircraft. 9 This control is further ensured 
by requiring medical aircraft to be clearly marked with the distinctive 
emblem provided for in the Convention, together with their national 
colors, on their lower, upper and lateral surfaces. Additional markings 
may be made the subject of agreement. Special precaution is taken in 
Article 39 to prohibit flights of medical aircraft over enemy or enemy- 
occupied territory, unless otherwise agreed. Finally, medical aircraft are 
obliged to "obey every summons to alight on land or water," l0 but in the 
event of alighting involuntarily on land or water in enemy-occupied terri- 
tory, the wounded, sick and shipwrecked, as well as the crew of the air- 
craft — medical personnel excepted — are to be made prisoners of war. 

The strict rule forbidding belligerent aircraft to fly over or land in 
neutral territory is mitigated in the special case of medical aircraft. Article 
40 of the 1949 Convention permits the medical aircraft of the Parties to 
the conflict to fly over the territory of neutral Powers, land thereon in case 
of necessity, or use it as a port of call. But every flight over neutral terri- 



8 It is readily apparent from Article 39 that the inclusion of medical aircraft in the 1949 
Convention was — ac best — done only reluctantly. To what extent belligerents will be able to 
utilize medical aircraft in future hostilities remains to be seen, though if Article 39 is any 
indication of future developments in this respect such use will certainly be very sparing. 

9 There is nothing in Article 39 or in the other provisions of the 1949 Convention which 
expressly prevents medical aircraft from being used to rescue the wounded and shipwrecked 
at sea — particularly such personnel as have been forced into the sea by or from aircraft. But it 
is quite clear that if medical aircraft are allowed to perform the function of so-called "seaplane 
ambulances" they are subject to the same strict conditions laid down for medical aircraft en- 
gaged in any oiher tasks. Hence, the recurrence of a controversy — between parties to the 1949 
Convention — similar to the controversy that took place between Germany and Great Britain 
in 1940 regarding the use by Germany of seaplane ambulances to rescue German airmen shot 
down at sea, would still support the position taken by Great Britain. At that time the British 
Government insisted that the use of seaplane ambulances was subject to the prior approval 
and control of the adverse Power, an approval that was not given by Great Britain after it had 
been ascertained that some of these aircraft were being used for intelligence activities. 

10 The relevant paragraph of Article 39 reads: "Medical aircraft shall obey every summons 
to alight on land or water. In the event of having thus to alight, theaircraft with its occupants 
may continue its flight after examination, if any." — It is not unreasonable to assume that the 
power thus given belligerents to compel medical aircraft to alight is to be exercised with due 
discretion (e. g., having regard to the availability of safe landing facilities), though no such 
phrase is contained in Article 39. 

130 



tory must be preceded by notice given to the neutral state concerned, and 
every summons to alight, on land or water, must be obeyed. In addition, 
the immunity of medical aircraft from attack is guaranteed "only when 
flying on routes, at heights and at times specifically agreed upon between 
the Parties to the conflict and the neutral Power concerned. 11 

e. The Distinctive Emblem; The Problem of Identification 

The distinctive emblem to be displayed on the flags, armlets and all 
equipment employed in the medical service is the red cross on a white 
ground. However, Article 41 of the 1949 Convention permits, in place 
of the red cross, the red crescent or the red lion and sun on a white ground, 
though only for those countries which already use these emblems. In the 
case of medical, religious and hospital personnel a water resistance armlet 
bearing the distinctive emblem is to be worn, and the armlet is to be issued 
and stamped by the competent military authority. 12 In addition, such 
personnel are to wear an identity disc and to carry a special identity card 
bearing the distinctive emblem and described in Article 42.. 13 

The effectiveness of the protection from attack granted to hospital ships 
quite naturally depends very largely upon the ease with which belligerents 
can make the proper identification. In practice, the problem of insuring 
the proper identification of hospital vessels proved quite difficult during 
the 1939 war, and it is widely agreed that in the all too numerous cases of 
attacks made upon hospital ships the cause was nearly always attributable 
to a failure — particularly on the part of aircraft — to make the proper 
identification. 14 The 1949 Convention has sought to ensure that instances 

11 The second paragraph of Article 40 goes on to declare — though somewhat redundantly — 
that: "The neutral Powers may, however, place conditions or restrictions on the passage or 
landing of medical aircraft on their territory. Such possible conditions or restrictions shall be 
applied equally to all Parties co the conflict." — Apparently these conditions or restrictions are 
of a special character and in addition to the restrictions governing routes, heights and times 
mentioned in paragraph 1 of Article 39. Finally, Article 40 provides that: "Unless otherwise 
agreed between the neutral Powers and the Parties to the conflict, the wounded, sick or ship- 
wrecked who are disembarked with the consent of the local authorities on neutral territory by 
medical aircraft shall be detained by the neutral Power, where so required by international law, 
in such a manner that they cannot again take part in operations of war. The cost of their 
accommodation and internment shall be borne by the Power on which they depend." 

12 Article 41. 

13 The card is to be water resistant, of pocket size, and should bear — at the very least — the 
name, date of birth, rank and service number of the bearer, in what capacity he is entitled to 
receive protection, the bearer's photograph, fingerprints and stamp of the military authority. 
In no circumstances are personnel to be deprived of their insignia or identity cards or of the 
right to wear the armlet. In case of loss they shall be entitled to receive duplicates of the 
cards and to have the insignia replaced. 

14 Article 5 of Hague X provided that military hospital ships were to be distinguished by 
being painted white outside with a horizontal band of green about a metre and a half in breadth. 
Private (enemy or neutral) hospital ships were to be painted white outside with a horizontal 
band of red about a metre and a half in breadth. In addition, Hague X declared that in order 
to ensure by night freedom from interference, hospital ships must — with the belligerent's 
consent — take the necessary measures to render their special painting sufficiently plain. Mossop 

399334—57 10 131 



of mistaken identification will be reduced to a minimum, and to this end 
prescribes — in Article 43 — that hospital ships shall be distinctively marked 
as follows: 

(a) All exterior surfaces shall be white. 

(b) One or more dark red crosses, as large as possible, shall be 
painted and displayed on each side of the hull and on the horizontal 
surfaces, so placed as to afford the greatest possible visibility from 
the sea and from the air. 15 

Further provisions of Article 43 are directed toward providing more 
accurate identification of hospital ships, though apart from the specific 
provision regarding the use of flags on hospital vessels 16 they are stated in 
the most general terms. Thus it is declared that hospital ships "which 
may wish to ensure by night and in times of reduced visibility the pro- 
tection to which they are entitled, must, subject to the assent of the Party 
to the conflict under whose power they are, take the necessary measures 
to render their painting and distinctive emblems sufficiently apparent." 



(op. cit., p. 401), points out that: "During the 1939 war additional markings on the sides, stern, 
and deck of hospital ships to aid identification by day, and illumination at night with a band 
of green lights on the sides and red crosses on the sides and deck picked out with red lamps, 
were adopted by common consent and provide a high degree of protection against underwater 
attack — although errors are not unknown in practice." — Spaight (op. cit., pp. 490-1) writes 
that despite these efforts toward better identification the instances of air attacks on hospital 
ships were numerous — on both sides — and that the record of World War II is, in this respect, 
"not a happy one." But Spaight observes, as does Mossop, that in all probability these 
attacks from the air were accidental and not deliberate. 

In World War I, however, German attacks upon Allied hospital ships were deliberate, 
though Germany defended these attacks by the claim that Allied hospital vessels were being 
used for military purposes (a charge denied by the British Government). An account of the 
World War I controversy is given in Hackworth, op. cit., Vol. VI, pp. 460-3. Among the 
British vessels sunk by German submarines were the Dover Castle and the Llandovery Castle, 
and the sinkings provided the occasion for two of the well-known trials held after World War I 
before the Reichsgericht. In the one case the commander of the submarine which sank the 
Dover Castle was found not guilty because he had acted under superior orders. In the second 
trial the Reichsgericht found the accused guilty of a violation of the law of war in having fired 
upon the survivors of the torpedoed Llandovery Castle who had taken to the lifeboats. 

15 In this connection Article 44 declares that the distinguishing signs referred to in Article 3 — 
and cited above — "can only be used, whether in time of peace or war, for indicating or pro- 
tecting the ships therein mentioned, except as may be provided in any other international 
Convention or by agreement between all the Parties to the conflict concerned." 

16 "All hospital ships shall make themselves known by hoisting their national flag and 
further, if they belong to a neutral state, the flag of the Party to the conflict whose direction 
they have accepted. A white flag with a red cross shall be flown at the mainmast as high as 
possible." In case hospital ships are provisionally detained by an enemy they must haul 
down the flag of the Party to the conflict in whose service they are or whose direction they 
have accepted. — The identification system provided for hospital ships is, in general, applicable 
as well to the lifeboats of hospital ships, coastal lifeboats and all small craft used by the medical 
service. 



132 



And in an even more general way the Parties to the conflict are directed 
to endeavor at all times ' ' to conclude mutual agreements in order to use the 
most modern methods available to facilitate the identification of hospital 
ships." 

Despite the improved system of marking hospital ships, provided for in 
the 1949 Convention, and the exhortation made to facilitate further the 
proper identification of such vessels by the use of modern devices, it seems 
altogether likely that the difficulties attending identification in World 
War II will remain largely unsolved. It is only to be expected that bel- 
ligerents will refrain from facilitating the identification of hospital ships 
if in so doing they run the risk of endangering the safety of their com- 
batant forces. Illumination at night of hospital ships has proven feasible 
when such vessels travel alone upon the high seas. But belligerents have 
been understandably reluctant to illuminate these vessels when in port or 
when accompanying combatant forces at sea. In these latter situations 
hospital ships — though, of course, not liable to direct and deliberate 
attack — must accept the risk attendant upon their presence in the immediate 
area of legitimate military objectives. 17 

It may be, however, that through the use of modern devices belligerents 
will be able to resolve at least some of the past difficulties encountered in 
the identification of hospital ships. The suggestion has been made that 
radar could be effectively used to facilitate proper identification. But the 
ease with which this device, as well as others, could be misused by belliger- 
ents presents an obstacle to future developments along this line, particu- 
larly in a period that is not marked by a high degree of mutual trust be- 
tween belligerents. At the very root of the problem, it would seem, is 
the difficulty of reconciling the belligerent practice of waging unrestricted 
warfare upon enemy merchant shipping with the precautions that are 
normally required if hospital ships are to be ensured against accidental 
attack as a result of faulty identification. In large measure, therefore, the 
problem of ensuring the proper identification of hospital ships must be 



17 To this extent it is hardly adequate that the 1949 Convention repeats in Article 30 the 
formula earlier used in Hague X that : ' 'During and after an engagement, they (hospital ships) 
will act at their own risk." It is clear that hospital ships act at their own risk whenever they 
place themselves in the immediate vicinity of legitimate military objectives. For even though 
every effort must be made to avoid firing upon — or bombing — hospital ships, the presence of 
the latter cannot serve to exempt nearby military objectives from attack for fear that a hospital 
vessel might thereby suffer incidental injury. In this connection, however, it should be ob- 
served that there is no basis for the contention — put forward by Germany during the 1939 
war — that hospital ships under convoy of belligerent warships surrender their right to claim 
exemption from direct attack. There is no provision either in the 1949 Convention or in Hague 
Convention X forbidding hospital ships from sailing under convoy. Indeed, in accompanying 
fleet forces to the scene of an engagement in order to succor the wounded and shipwrecked — 
a task specifically conferred upon hospital ships — it is obvious that hospital vessels are — in a 
sense — sailing under convoy. 

133 



seen in the broader context of the present liability of belligerent merchant 
shipping to attack and destruction. 18 
f. Application and Enforcement 

Each of the four 1949 Geneva Conventions For the Protection of the 
Victims of War contain a number of similar provisions relating to applica- 
tion and enforcement of all. However, the relevance of these provisions 
will necessarily depend largely upon the particular category of war victims 
under consideration. With respect to the wounded, sick and shipwrecked 
at sea, many of the general provisions found in the four Geneva Conventions 
have only a limited relevance and warrant no more than a brief summary. 19 

The 1949 Convention on the wounded, sick and shipwrecked at sea is 
applicable "to all cases of declared war or of any other armed conflict 
which may arise between two or more of the High Contracting Parties, 
even if the state of war is not recognized by one of them." 20 In the event 
that one of the Powers in conflict is not a party to the Convention, those 
Powers who are Parties shall nevertheless remain bound by it in their 
mutual relations. Moreover, those Powers already bound by the Con- 
vention shall be bound in relation to a Power not a Party, provided the 
latter accepts and applies the provisions of the Convention. 21 Special 
provision is also made — in Article 3 — for the collection and care of the 
wounded, sick and shipwrecked during an armed conflict which is ' 'not of 
an international character" (i. e., in a civil war and analogous situations); 
each Party to such conflicts being obligated to treat the sick, wounded and 
shipwrecked in a humane manner and without any adverse distinction 



18 See pp. 57-70. It need hardly be pointed out that the above remarks are not intended as 
a. justification for the fact that hospital ships were frequently attacked during World War II. It 
is apparent, however, that a policy allowing unrestricted warfare against merchant ships 
by submarines and aircraft must — almost of necessity — render the hospital ship's position a 
far more hazardous one. And this is especially true when the weapons used to implement such 
a policy permit destruction at great distances. 

19 For a detailed analysis of these general provisions see, in particular, Paul de La Pradelle, 
La Conference Diplomatique Et Les Nouvelles Conventions de Geneve du Ao4t 1949 (195 1). 

20 Article x. The general significance of this provision has been noted elsewhere in the 
text (see pp. 2.3-4). 

21 The above provisions of Article 2. are completed by the further stipulation that the Con- 
vention applies "to all cases of partial or total occupation of the territory of a High Contracting 
Party even if the said occupation meets with no resistance." — Although the Convention nor- 
mally comes into force for a Party six months after the instruments of ratification have been 
deposited, Article 61 declares that situations "provided for in Articles z and 3 shall give im- 
mediate effect to ratifications deposited and accessions notified by the Parties to the conflict 
before or after the beginning of hostilities or occupation." — Denunciation of the Convention 
shall take effect one year following notification, but a denunciation during a period of armed 
conflict shall not take effect until peace has been concluded and until operations connected 
with the release and repatriation of the persons protected by the Convention have been termi- 
nated (Article 62.). 



134 



founded on race, colour, religion, sex, or any other similar criteria. 22 
The field of application of the 1949 Convention is limited by Article 4 
to forces on board ship. Once forces are put ashore they immediately 
become subject to the provisions of the Convention for the Amelioration 
of the Condition of the Wounded and Sick in Armed Forces in the Field. 23 
The Convention takes precaution to ensure that the rights conferred upon 
protected persons shall not be adversely affected by special agreements 
Parties to the conflict may conclude in the course of hostilities. 24 Similar 
care is taken to emphasize that protected persons may "in no circumstances" 
renounce in part or in entirety the rights secured to them by the Conven- 
tion. 25 Nor can this obligation imposed upon the parties to the Convention 
to respect the rights of the wounded, sick and shipwrecked be restricted by 
the operation of reprisals. For Article 47 of the Convention declares that: 
"Reprisals against the wounded, sick and shipwrecked persons, the per- 
sonnel, the vessels or the equipment protected by the Convention are 
prohibited. 26 

The importance of the provisions in the Convention dealing with the 
Protecting Powers — neutral states whose duty it is to safeguard the interests 
of the Parties to the conflict — is limited. The difficulties involved in 
obtaining the presence of representatives of the Protecting Powers at the 
scene of operations — particularly at sea — are well known. Besides, 
Article 8 of the Convention directs such representatives of Protecting 
Powers to "take account of the imperative necessities of security of the 



22 Article 3 raises many novel problems which cannot be dealt with here. It is interesting 
to note, however, that this article seeks to obligate not only the present Parties to the Con- 
vention but also future rebel forces that may rise up within the territory of any of the Parties. 
There is no assurance, though, that such future forces will agree to consider themselves bound 
by the "fundamental" obligations laid down in Article 3. Nevertheless, Article 3 is — so far 
as the Parties to the Convention are concerned — unconditional and not dependent upon reci- 
procity of treatment on the part of unrecognized forces in a future civil war. However, once 
the rebellious forces are recognized by the parent state — and, perhaps, if not by the parent state 
then by third states — the conflict takes on an "international" character, and Article z applies. 
But once Article 2. applies the parent state is released from any of the obligations laid down by 
the Convention, if the newly recognized belligerent refuses to accept and apply the provisions 
thereof. 

23 And Article 5 declares that neutral Powers "shall apply by analogy the provisions of the 
present Convention to the wounded, sick and shipwrecked, and to members of the medical 
personnel and to chaplains . . . received or interned in their territory, as well as to dead 
persons found." 

24 Article 6. 

25 Article 7. 

26 A provision whose rigid observance may prove difficult with respect to an enemy who 
insistently refuses to adhere to the provisions of the Convention, and — in particular — resorts 
to inhumane measures in treating the wounded, sick or shipwrecked falling under its power. 



135 



State wherein they carry out their duties." 27 Nevertheless, provision is 
made for Protecting Powers, and in order to fulfill their tasks of safeguard- 
ing the interests of the Parties to the conflict these Powers may appoint 
delegates chosen from their diplomatic or consular staff, from amongst 
their own nationals or the nationals of other neutral Powers. The dele- 
gates so chosen are subject to the approval of the Power with which they 
are to carry out their duties, and once approved the task of the delegates is 
to be facilitated to the greatest extent possible. 28 One function of the 
Protecting Powers warrants special mention. Article n of the Convention 
provides that where they deem it advisable in the interest of protected 
persons, and particularly in cases of disagreement between the Parties to 
the conflict as to the application or interpretation of the Convention, the 
Protecting Powers shall lend their good offices with a view to settling the 
disagreements. For this purpose a Protecting Power may, either on its 
own initiative or at the invitation of one Party, propose a meeting of the 
representatives of the Parties to the conflict. The latter are bound to give 
effect to the proposals made to them for this purpose. 

In general, the Parties to the Convention are obliged to ensure — through 
their Commanders-in-Chief — that the specific provisions of the Convention 
are properly executed and that unforeseen cases are provided for in con- 
formity with the general principles laid down therein. 29 The text of the 
convention must be disseminated as widely as possible. 30 Of particular 
significance — not only for what they contain but also for their omissions — 
are the provisions dealing with the repression of abuses and infractions. 
The High Contracting Parties undertake, in Article 50, "to enact any 
legislation necessary to provide effective penal sanctions for persons com- 
mitting, or ordering to be committed, any of the grave breaches of the 
present Convention . . ." — the latter being defined 31 as "wilful killing, 



27 And although Article 8 goes on to state that the activities of representatives of Protecting 
Powers "shall only be restricted as an exceptional and temporary measure when this is ren- 
dered necessary by imperative military necessities," it will be apparent that such "imperative 
military necessities" may prove to be of frequent occurrence in operations at sea. 

28 Article 9 provides that the provisions of the Convention "constitute no obstacle to the 
humanitarian activities which the International Committee of the Red Cross or any other 
impartial humanitarian organization may, subject to the consent of the Parties to the conflict 
concerned, undertake for the protection of wounded, sick and shipwrecked persons, medical 
personnel and chaplains, and for their relief. " And Article 10 contains provisions which allow 
the Parties at any time to agree to entrust "to an organization which offers all guarantees of 
impartiality and efficacy the duties incumbent on the Protecting Powers by virtue of the present 
Convention." The organization referred to in Article 10 is not to be confused with the Red 
Cross or other humanitarian organizations already in existence. Instead, it refers to the pos- 
sible future creation of an organization capable of taking over the functions of Protecting 
Powers in a war in which there may be no neutral states. 

29 Article 46. 

30 Article 48. 

31 Article 51. 

136 



torture or inhuman treatment, including biological experiments, wilfully 
causing great suffering or serious injury to body or health, and extensive 
destruction and appropriation of property, not justified by military necessity 
and carried out unlawfully and wantonly." The obligation is laid upon 
each contracting Party to search for persons alleged to have committed, or 
to have ordered to be committed, such grave breaches, and to bring them — 
regardless of nationality — before its own courts. As an alternative it 
may — though only if it so prefers — hand such persons over for trial to 
another contracting Party, provided the latter has made out a -prima facie 
case. And apart from the acts held to constitute grave breaches of the 
Convention the Parties are further obliged to take whatever measures are 
necessary for the suppression of all acts contrary to the provisions of the 
Convention. 32 

Finally, attention may be directed to the inquiry procedure provided for 
in Article 53 of the Convention. Article 53 reads: 

At the request of a Party to the conflict, an inquiry shall be insti- 
tuted, in a manner to be decided between the interested Parties, 
concerning any alleged violation of the Convention. 

If agreement has not been reached concerning the procedure for 
the inquiry, the Parties should agree on the choice of an umpire, 
who will decide upon the procedure to be followed. 

Once the violation has been established, the Parties to the con- 
flict shall put an end to it and shall repress it with the least 
possible delay. 

32 Although the Convention does not so state, the "grave breaches" enumerated in Article 
51 are certainly war crimes. It can hardly be said, however, that the procedure set out in 
the 1949 Convention for the punishment of grave breaches of the Convention constitutes a 
marked departure from traditional procedures. For all practical purposes Article 51 of the 1949 
Convention obligates the contracting parties to do little more to repress abuses and infractions 
than did its predecessor — i. e., Hague X, in Article zi. This is all the more significant in view 
of the fact that the 1949 Convention was concluded during a period in which the establishment 
of new procedures to ensure individual responsibility for violations of international law through 
the creation of international criminal courts has been widely proclaimed as one of the essential 
tasks of the present international legal order. And the obvious reticence of the drafters of the 
1949 Geneva Conventions even to use the term "war crimes," let alone to initiate a truly interna- 
tional procedure for the apprehension of war criminals, stands in clear contrast to many of the 
rather sweeping estimates of the significance to be attached to the recently concluded war 
crimes trials as well as to resolutions — without binding effect — made by the General Assem- 
bly of the United Nations concerning war crimes and individual responsibility for such crimes. 

A further provision of the 1949 Convention — Article 52. — states that: "No High Contracting 
Party shall be allowed to absolve itself or any other High Contracting Party of any liability 
incurred by itself or by any other High Contracting Party in respect of breaches referred to in 
the preceding Article (51)." The obligation imposed by this Article does not refer to the war 
but to the peace treaty concluded between Parties to the Convention (see Kunz, of. cit., p. z86). 
The apparent intent is to prevent a victor from absolving himself of liability incurred for grave 
breaches of the Convention by means of a provision in the peace treaty he may impose upon 
the defeated state. 

137 



The inquiry procedure is optional, therefore, and dependent entirely 
upon the prior agreement of the Parties to a dispute. A similar procedure 
for investigating alleged violations was laid down in Article 30 of the 192.9 
Convention for the Amelioration of the Condition of Wounded and Sick of 
Armies in the Field, though this Article was never once used during World 
War II, 33 

G. RUSES IN NAVAL WARFARE 

It has already been observed that one of the general principles of the law 
of war is the principle forbidding the resort to treacherous means, expedi- 
ents or conduct in the waging of hostilities. Although belligerents are 
permitted to resort to ruses, or stratagems, in order to obtain an advantage 
over an enemy, acts of treachery are prohibited. Whereas both ruses as 
well as acts of treachery usually partake of the element of deception, the 
former are regarded as "measures for mystifying or misleading the enemy 
against which the enemy ought to take measures ot protect himself." 34 
Acts of treachery, on the other hand, are held to consist of measures of 
deceit which involve a breach of faith with an enemy. 

To the extent that the general principle forbidding the resort to treachery 
(and, conversely, permitting the resort to ruses) has been given express 
application in the form of specific rules of custom or convention no par- 
ticular difficulty arises with respect to its interpretation. 35 Thus it is 

33 And doubt may be expressed over the future effectiveness of Article 53 of the 1949 Conven- 
tion. Nor is this glaring defect of the 1949 Convention compensated for by the Resolution 
accompanying the Final Act of the Conference, which recommended that Parties unable to 
settle disputes by other means should endeavor to submit such disputes to the International 
Court of Justice. 

34 U. S. Army Rules of Land Warfare, paragraph 49. There is a certain terminological 
confusion with respect to the term "ruse". Many writers use the term to cover only those 
acts of deception permitted to belligerents. The term treachery — or perfidy — is then used to 
cover forbidden acts of deception. In the Hague Regulations (1907) Article 14 speaks of 
"ruses of war" as "permissible measures," and Article Z3b forbids "treacherous" action. 
Not infrequently, however, the term "ruse" is used to cover both legitimate and illegitimate 
acts of deception; treachery then meaning an illegitimate ruse. In the text the former usage 
is adhered to. 

35 In the absence of specific rules considerable difficulty may arise. It has never been easy to 
establish general criteria that could be applied to all possible acts of deception in order to 
determine whether such acts may be regarded as permissible ruses or forbidden treachery. The 
difficulties involved are very similar to the difficulties involved in the attempted interpretation 
and application of the principle of humanity (see pp. 46-9). If it is stated that treachery consists 
of acts of bad faith which are forbidden by custom or convention, while ruses consist of acts 
permitted (at least negatively) by law, then this answer merely amounts to saying that decep- 
tion expressly forbidden by law is treachery whereas acts of deception not expressly forbidden 
are ruses. This statement is quite true, but it is of little or no assistance as applied to novel 
acts of deception in order to determine whether such acts fall within the category of permissible 
ruses or within the category of treachery. 

English and American writers generally follow Halleck, who distinguished between ruses 
and treachery by stating that "whenever a belligerent has expressly or tacitly engaged, and is, 

138 



clearly forbidden to use a flag of truce as a means of deceiving an enemy 
and in order to obtain an advantage over him. It is also forbidden to use 
the red cross, or other equivalent distinctive emblems, for any purpose 
other than those humanitarian purposes which such emblems are univer- 
sally understood to signify. Hence in warfare at sea, hospital vessels and 
medical aircraft, as well as their personnel, which bear these distinctive 
emblems and enjoy the protection offered thereby, must not be used for 
any military purpose. 36 The same considerations apply to the attempted 
use for military purposes of cartel ships and any other vessels which — by 
special agreement between belligerents — have been accorded exemption 
from attack and capture. 

The most important ruses employed in naval warfare relate to the meas- 
ures belligerent warships may take in order to conceal their identity. 
Subject to those prohibitions indicated above, almost every conceivable 
form of disguise is permitted to belligerent warships. They may even take 
on the disguise of merchant vessels. In addition, they are permitted, 
according to custom, to disguise their true identity by the use of false 
colors, provided only that prior to the exercise of belligerent rights (attack, 
visit or search, seizure) they show their true colors. 37 

therefore, bound by a moral obligation, to speak the truth to an enemy, it is perfidy to betray 
his confidence, because it constitutes a breach of good faith ..." But when has a belligerent 
the obligation to speak the truth, particularly in an era (as both Stone (op. cit., p. 561) and 
Spaight (op. cit., p. 169) well point out) in which false communications and false reports have 
become standard practices? Spaight suggests that the preferable formula run as follows: "A 
procedure, emblem, or signal to which a recognized significance is attached by international 
law or custom, may not be diverted to another purpose prejudicial to its being respected when 
used for its original restrictive or humanitarian purpose." Apart from the fact that this formula 
does not seem to cover all possible acts of deception, it does not really solve the problem. The 
phrase "recognized significance" begs the decisive question. If "recognized significance" 
means "embodied in a rule of customary or conventional law" then Spaight's formula simply 
states that the law should be observed. To say, for example, that the red cross emblem should 
"not be diverted to another purpose" is merely to state what the law governing the use (and 
misuse) of this emblem already states. — Stone proposes that "the test (between ruses and 
treachery) on principle should be whether the deceit attacks the security of some interest or 
principle to which States generally, whether enemies or not, attach special importance. Thus, 
using civilians as a shield, or misuse of the flag of truce, undermines the principle of immunity 
of civilians, and that negotiations should be possible even between enemies. Of course, evalua- 
tions are here involved, which allow diversity of opinion even if such a test were accepted." 
There is much to be said for this proposal, despite the fact that it also raises some of the diffi- 
culties already referred to. 

36 See pp. 1x6-8 for a discussion of the provisions which deal with the misuse of the red cross 
emblem in the 1949 Geneva Convention for the Amelioration of the Condition of the Wounded, 
Sick and Shipwrecked Members of Armed Forces at Sea. 

37 See Law of Naval Warfare, Section 64oa. — It is customary for writers to point out the well 
known case of the German cruiser Emden which, in 1914, "hiding her identity by rigging up a 
dummy fourth funnel and flying the Japanese flag, passed the guardship of the harbour of Penang 
in the Malay States, made no reply to its signals, came down at full speed on the Russian cruiser 
Zemshug, and then, after lowering the Japanese flag and hoisting the German flag, opened fire 

139 



Although the use of false colors (i. e., enemy or neutral) by belligerent 
warships is clearly permitted by custom — 'and was frequently resorted to 
during both World Wars — the practice has been the object of some criti- 
cism. 38 It has been claimed that whereas the use of enemy flags, uniforms 
and insignia is forbidden at all times in land warfare an analogous practice 
is permitted, in part at least, in naval warfare. In fact, however, the 
position with respect to the wearing of enemy uniforms and insignia in 
land warfare is — at present — unsettled. 39 Be that as it may, it does not 
appear entirely useful to compare, in this respect, land warfare to naval 
warfare. Even if it is assumed that in land warfare belligerent forces are 
permitted to wear enemy uniforms and insignia save when engaged in 
actual combat, this practice will involve only the combatants. In naval 
warfare the practice of permitting warships to disguise themselves as 

and torpedoed her." Oppenheim-Lauterpacht, op. cit., p. 510. — During World War II the 
Germans enjoyed a measurable degree of success through the skillful disguise they provided 
for their armed raiders. Roskill (The War at Sea, p. Z77) describes this disguise as follows: 
"Their funnels and topmasts were telescopic, dummy funnels and derrick posts could be fitted; 
false bulwarks, false deck houses and dummy deck cargoes were other devices employed; and 
repainting was often carried out at sea to render valueless any reports of their colouring which 
the Admiralty might obtain and promulgate." The tactics of the armed raiders were to reveal 
their true identity only after having come within close enough range to overwhelm the victim 
(usually armed enemy merchant vessels) by surprise. — One of the most notable actions involving 
these armed raiders took place in November 1941 between the Australian cruiser Sydney and 
the German armed raider Kormoran. The disguised raider, when approached by the Sydney, 
identified herself as a Dutch merchant vessel. Before the Sydney could establish the truth or 
falsity of her claimed identity the Kormoran cast off her disguise and opened fire at a distance of 
z,ooo yards. As a result of the action the Sydney was destroyed with complete loss of officers 
and crew. The incident is described by Roskill, pp. 547-9. Also Von Gosseln, "The Sinking 
of the Sydney," U. S. Naval Institute Proceedings, 79 (1953), p. 2.5. 

38 For example, by H. A. Smith, op. cit., pp. 91-3, and Erik Castren, op. cit., pp. Z64-6. Ar- 
ticle 7 of the U. S. Naval War Code of 1900 declared that "the use of false colors in war is for- 
bidden." Later discussions, however, indicated uncertainty over the desirability of this 
provision in the absence of international agreement. U. S. Naval War College, International Law 
Discussions, 1903, pp. 37-42.; also for the year 1906, pp. 7-2.0. Neither the 1917 nor the 1941 
Instructions issued to the U. S. Navy contained a provision relating to the use of false colors by 
warships. 

39 Article u^i of the Hague Regulations merely forbids the "improper use" of the "military 
insignia and uniform of the enemy," leaving unsettled (at least by a literal interpretation) the 
question as to precisely what acts may constitute improper use. It has been contended that 
the wearing of enemy uniforms at any time is forbidden and that this was the true intent of 
Article 2.3L Thus, one writer concludes, after a careful survey, that "international law, 
customary as well as conventional, forbids under all circumstances the use of enemy uniforms 
for purposes of deceiving the enemy." Valentine Jobst III, "Is the Wearing of the Enemy's 
Uniform a Violation of the Laws of War?," A. J. I. L., 35 (1941), P--44*- Some writers con- 
tend, however, that this rule only extends to combat, and the U. S. Army Rules of Land Warfare, 
state in paragraph 54: "In practice it has been authorized to make use of national flags, in- 
signia, and uniforms as a ruse. The foregoing rule (Article Z3, paragraph (f) HR) does not 
prohibit such employment, but does prohibit their improper use. It is certainly forbidden to 
employ them during combat, but their use at other times is not forbidden." 

140 



merchant vessels has as one effect to render more difficult the retention of 
the distinction made between combatants and non-combatants. Experi- 
ence has shown that it is futile to expect a belligerent to adhere to the 
traditional law when this can be done only under circumstances of great 
peril to the visiting warship. 40 Besides, the prohibition in land warfare 
against employing enemy uniforms and insignia in actual combat does 
serve to prevent further deception on the battlefield, and to insure that 
when engaged in combat belligerents will be able to distinguish friend 
from foe. In naval warfare it is difficult to see how the same purpose — or, 
for that matter, any purpose — is served by the rule requiring that a warship 
show its true colors prior to attack. The show of colors may be carried 
out almost simultaneously with the act of attack. But once the attack 
begins there is no longer any possibility to deceive. It is for this reason 
that the rule has been considered by some writers as arbitrary since it 
forbids certain acts of deception from the moment at which they cease to 
deceive. 41 

It is also true that the use of false colors may affect adversely the interests 
of neutral states. In the past the view has been that the use of neutral 
colors by belligerent warships was a matter primarily of concern to bellig- 
erents, neutral states having only an indirect interest. This view must 
assume, however, that belligerents will rigorously observe the traditional 
rules governing belligerent interference with neutral trade. But in a 

40 "As things stand, the warship which honestly tries to conform to the traditional rules 
places herself in great peril. She may stop a vessel wearing some neutral flag and approach 
her in accordance with the prescribed routine. At any moment the other ship may hoist her 
true colours and discharge a heavy broadside upon the ship which is trying to obey the law." 
H. A. Smith, of. cit., p. 92.. Smith considers the rule permitting false colors to be an anachron- 
ism, a survival from the days of pirates and privateers. "In earlier times there were good 
reasons for the old rule, which often helped ships to make their escape from pirates or priva- 
teers. Pirates obeyed no law and privateers were often not much better. The outwitting of 
such enemies could call for no censure." There is, in addition, a considerable difference be- 
tween the effectiveness of the ruse in modern combat, as distinguished from naval battles of 
earlier days. The speed and firepower of vessels allowed in earlier days time to establish 
identity and to provide for action in case of mistake. Today the loss of a few minutes, or even 
seconds, is likely to prove decisive, as the case of the Sydney seems to bear out. 

41 W. E. Hall, A Treatise On International Law (5th ed., 1904), pp. 538-9. "A curious arbi- 
trary rule affects one class of stratagems by forbidding certain permitted means of deception 
from the moment at which they cease to deceive. It is perfectly legitimate to use the distinc- 
tive emblems of an enemy in order to escape from him or to draw his forces into action; but it 
is held that soldiers clothed in the uniforms of this enemy must put on a conspicuous mark by 
which they can be recognized before attacking, and that a vessel using the enemy's flag must 
hoist its own flag before firing with shot or shell. The rule, disobedience to which is con- 
sidered to entail grave dishonor, has been based on the statement that 'in actual battle, enemies 
are bound to combat loyally and are not free to ensure victory by putting on a mask of friend- 
ship.' In war upon land victory might be so insured, and the rule is consequently sensible; 
but at sea, and the position is spoken of generally with reference to maritime war, the mask of 
friendship no longer misleads when once fighting begins, and it is not easy to see why it is more 
disloyal to wear a disguise when it is absolutely useless, than when it serves its purpose." 

141 



period when belligerent claims of control over neutral trade are already ex- 
tensive, the use of neutral colors by belligerent warships can serve only to 
provide belligerents with an additional reason for making still greater 
claims of control over neutral shipping. 42 

The criticisms raised against the ruse which permits the use of false colors 
is therefore not without substantial merit. Nevertheless, as matters now 
stand the law is reasonably clear, despite the fact that continuance of the 
practice forms a contributing cause in the increased liability of merchant 
vessels to attack. It is doubtful, however, that belligerent military air- 
craft are permitted to make use of similar ruses in operations at sea. Al- 
though there are no conventional rules regulating the marking of aircraft 
in time of war, the practice of belligerents during World Wars I and II 
would appear to indicate acceptance of a prohibition against the false 
marking of aircraft in order to deceive an enemy. 43 

42 These neutral difficulties are considerably increased by the use of the neutral flag by bellig- 
erent merchant vessels in order to avoid capture or destruction. As between belligerents the 
practice of so disguising merchant vessels is not open to objection and probably should not be 
classified as a ruse de guerre in the strict sense. The neutral state may claim, however, that the 
practice represents the misuse of its flag and endangers its interests. When during World 
War I Great Britain ordered its merchant vessels to simulate neutral vessels as closely as possi- 
ble, and to use the flags of neutral states, several neutrals protested. In particular, the United 
States declared that while the neutral flag could be used on occasion by belligerent merchant 
vessels in order to escape seizure by an enemy this did not mean that such vessels could make use 
of the neutral flag as a general practice or that the belligerent state could claim this as a right 
with respect to its merchant vessels. Great Britain did not accept the protest, maintaining 
that custom allowed belligerent merchant vessels to resort to such disguise. The British 
Government did state though that it had no intention of advising merchant shipping "to use 
foreign flags as general practice or to resort to them otherwise than for escaping capture or 
destruction." cited in Hackworth, op. cit., Vol. VI, pp. 455-8. The concern of neutrals 
arose from a fear that the British action would serve to deprive neutral vessels of immunity 
from attack by German submarines. The British contention that belligerents were forbidden 
either to capture or to destroy a merchant vessel before ascertaining its nationality or character, 
and that hence neutral vessels were placed in no greater danger by the belligerent use of the 
neutral flag, was formally correct. Given the circumstances under which the conflict was 
being fought, however, the reply was no more than formal. 

Section 14 of the U. S. Neutrality Act of November 4, 1939 provided: 

"(a) It will be unlawful for any vessel belonging to or operating under the judrisiction of 

any foreign State to use the flag of the United States thereon, to make use of any distinctive 

signs or markings, indicating that the same is an American vessel. 

(b) Any vessel violating the provisions of subsection (a) of this section shall be denied for 

a period of three months the right to enter the ports or territorial waters of the United States 

except in cases of force majeure." U. S. Naval War College, International Law Situations, 1939, 

p. IZI. 

43 Spaight (pp. cit., pp. 169 ff.), in reviewing this practice, considers it as constitutive of a 
customary rule. Presumably this prohibition extends to aircraft which bear no markings. 
Stone (pp. cit., p. 612.) states that: "Protests by each side against alleged false use in both World 
Wars, and the care taken to deny such charges, suggests an inchoate prohibition. But no 
details of any such prohibition have emerged, for instance, as to whether (as in naval warfare) 
false marks could be used while cruising, provided true colors are shown before opening fire." 

142 



H. BOMBARDMENT 

In principle, bombardment may be undertaken either for the purpose of 
effecting the immediate entry and occupation of the area bombarded or 
for the purpose of attacking objectives the destruction of which would 
constitute a military advantage to the belligerent. Traditionally, the 
former purpose has been associated with the operations of forces on land, 
and in the circumstances of warfare that prevailed up to World War I the 
principal test for determining the legitimacy of land bombardment was 
whether or not the place attacked was "defended." u Perhaps the main 
circumstance that formerly characterized bombardment on land was the 
short range of artillery, which meant that a city or town being bombarded 
by land forces was within the combat zone. An "undefended" city or 
town was, in effect, one that was open to the immediate entry of and 
occupation by enemy forces, and because of its situation the further bom- 
bardment of such a place would merely cause unnecessary destruction of 
lives and property. 45 

In naval operations, however, the occupation of enemy coastal areas — 
even if only temporary in character — may prove exceptional. Instead of 
serving as a prelude to occupation the object of naval bombardment is 
frequently limited to that of denying an enemy the continued use of his 
military resources. For this reason the rules laid down in Hague Con- 
vention IX (1907), regulating bombardment in naval warfare, while for- 
bidding the bombardment by naval forces of "undefended ports, towns, 
villages, dwellings, or buildings," 46 expressly exempted from this pro- 
hibition "military works, military or naval establishments, depots of arms 
or war material, workshops or plants which could be utilized for the needs 
of the hostile fleet or army, and ships of war in the harbor . . ." 47 



44 Article 2.5 of the Land Warfare Regulations annexed to Hague Convention IV (1907) 
provided that the "attack or bombardment by whatever means, of towns, villages, dwellings 
or buildings which are undefended is prohibited." 

45 Thus John Westlake (International Law, (1907), part II, p. 77) wrote that the principle 
upon which Article 15 of Hague IV was based "is that a land force can occupy an undefended 
place and, if it must afterwards evacuate it, can destroy before doing so all that its military 
value to the enemy exposes to lawful destruction; therefore bombarding the place without or 
before occupying it would be wantonly to endanger both the lives of the population and the 
property not lawfully subject to destruction. The same reason will apply to the dealings of 
a fleet with the undefended coast town, unless it cannot spare the force or the time required for 
landing and occupying it, including re-embarkation if necessary: in that case only can the 
question of its right to bombard it arise." 

46 Article 1. 

47 Article 2.. Furthermore, according to Article 2. the commander of a naval force could — as a 
rule — destroy such objectives in an "undefended" town or port only after the local authorities 
had been summoned to destroy them and had failed to do so. But this latter obligation was 
qualified by the further provision that "if military necessity demanding immediate action 
permits no delay, it is nevertheless understood that the prohibition to bombard the undefended 

143 



Hague Convention IX therefore expressly recognized the belligerent 
right to bombard certain "military objectives" even though located in or 
near an "undefended" enemy area. Nevertheless, this particular juxta- 
position of the criterion of defense and the criterion of the military objective 
has been the source of some uncertainty and confusion in dealing with 
bombardment in naval warfare, and, it may be added, this confusion has 
carried over into aerial warfare as well. In naval warfare a town or port 
may be completely without defenses 48 though not open to entry by the 
naval forces of an enemy, for the reason that enemy naval forces may be 
incapable of occupying the undefended place. If enemy naval forces are 
not capable of occupation then bombardment is permitted, but only against 
military objectives. It is only if a town or port contains neither defenses 
nor other legitimate military objectives that bombardment is prohibited. 
Immunity from bombardment by naval forces need not result from the 
fact of being actually open to entry — in the sense that these forces are 
capable of effecting entry — but from the reason that the area contains no 
object that may lawfully be attacked. Of course, if an enemy place, 
though containing military objectives, can be entered and occupied by 
naval forces then further bombardment of these objectives is evidently 
superfluous and — if undertaken — would constitute a violation of the rule 
forbidding wanton destruction. 49 

town holds good ..." Finally, a commander incurs no responsibility "for any unavoidable 
damage which may be caused by a bombardment under such circumstances." 

Article 3, of negligible significance today, provided that an undefended town or port could 
nevertheless be bombarded if the local authorities declined to comply with the demand for 
requisitions "necessary for the immediate needs of the naval force before the place in question. ' 

48 Precisely when this will in fact be the case is a question over which there has been a good 
deal of controversy. It seems clear that the second paragraph of Article 1 of Hague IX, stating 
that a place "cannot be bombarded solely because automatic submarine contact mines are 
anchored off the harbor," is neither generally indicative of an answer to this question nor 
satisfactory in itself. For example, would fortifications placed on adjacent coasts be enough 
to turn a nearby town or port into a defended area in the sense of Hague IX? 

49 See Law of Naval Warfare, Article 6iid. — It should be made clear, however, that the "in- 
capacity" of a naval force to enter and occupy an undefended coastal town or port may be the 
result of the mission upon which it is engaged at the time. If the military mission upon which 
the naval force is engaged does not permit entry and occupation a coastal town or port con- 
taining military objectives may be bombarded even though undefended. Hence the phrase "can 
be entered and occupied" — and used in the text above — must be understood as implying not 
only the absence of any defense but also a compatibility between entrance and occupation and 
the military mission assigned to the naval force. — In aerial warfare a city or town located well 
behind the front lines, i. e., in the hinterland or well outside the zone of combat, is certainly 
not open to entry, even though not itself possessing any defenses. Terminology drawn from 
land warfare becomes very misleading here and it is best to omit altogether the term undefended 
town, as did Article 2.4 of the unratified 1913 Rules of Aerial Warfare. The criterion to be 
used in reference to cities or towns in rear areas is that of the military objective, and any defenses 
located within the city or town are simply considered as military objectives. Hence a town 
containing neither defenses of its own nor any other military objectives is immune from bombardment. 
Some confusion on this score arose during World War II, when claims for immunity from air 

144 



With respect to the military objectives that may be made the target of 
lawful attack according to Article 2. of Hague IX, it would appear that 
recent developments have rendered this list unduly restrictive, and it can 
no longer be accepted as exhaustive. It is clear, for example, that com- 
munication systems used for military purposes may be bombarded by naval 
forces, even though not included in the list given in Hague IX. The same 
may be said for other objectives that belligerents have now come to recog- 
nize as forming legitimate targets for attack. 60 

bombardment were made on behalf of "undefended" cities located, in many instances, at con- 
siderable distances behind the combat zone. Not being open to immediate entry and occupa- 
tion they were not accorded exemption from aerial bombardment if containing military objec- 
tives. The fact that these cities did not possess defenses of their own, nor even attempt to inter- 
cept aerial attackers, was not held to be decisive. These cases are reviewed by R. Y. Jennings 
("Open Towns," B. Y. I. L., 2.2. (1945), pp. Z58-64) who observes: "There is no virtue in mere 
lack of defense. Unless accompanied by its corollary of freedom of entry the exemption of 
the undefended town would lead to the absurd result that a belligerent could secure the immunity 
of his production centres and lines of communication from lawful bombardment simply by 
omitting to defend them, and could thus concentrate all his arms for attack" (pp. 2.60-1). 
It does appear, however, that on several occasions during World War II immunity was claimed 
on the basis that the belligerent putting forth the claim was allegedly prepared to deny him- 
self the use of all military resources within the city. This raises a different question. In 
principle, it would seem, as Jennings points out, "that a belligerent may claim exemption for 
a town if he voluntarily ceases to use its resources for military purposes ..." Nevertheless, 
the experience of World War II is of little guidance on this point, and there are no instances 
where such a claim was conceded. Certainly, the practical difficulties in the way of insuring 
that an enemy would in fact forego use of the military resources of a city would be very great. 
Besides, there is the further objection that even if such abstinence could be insured there could 
be no guarantee that the agreement would not be broken off at any time with the result that 
the belligerent accorded immunity would be able to place in use those resources preserved intact. 
But the other belligerent would then be confronted with the task of destroying those resources 
at a time when, for various reasons, he might be unable to do so. — Finally, a careful distinction 
should be drawn — for the purposes of aerial bombardment — between bombardment in the 
zone where land operations are proceeding and bombardment carried out against cities in the 
rear areas. Within the combat zone aerial bombardment is restricted only by the rule forbidding 
wanton destruction — e. g., in attacking cities open to entry by the land forces. This follows 
for the reason that the zone of combat is regarded as constituting one vast military objective. 

50 Though Article 5 of Hague IX certainly remains valid and obligates the commander of 
naval forces undertaking the bombardment either of defended or undefended places to take 
"all necessary measures ... to spare as far as possible buildings devoted to religion, to the 
arts and sciences, or to charitable purposes, historic monuments, hospitals, and places where 
the sick or wounded are collected, on condition that they are not used at the same time for 
military purposes." The inhabitants have the duty of indicating such places by visible signs 
consisting of large stiff rectangular panels divided diagonally into two coloured triangular 
portions, the upper portion black, the lower portion white. The provisions of Article 5 have 
been generally recognized as applicable to aerial warfare as well. See Law of Naval Warfare, 
Article 62.Z, and notes thereto, for the relevant provisions of the 1949 Geneva Convention for 
the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field which 
deal with the protection of medical establishments and units as well as with the establishment 
of hospital zones and localities. Special note should also be taken of the provisions of the 1949 
Geneva Convention Relative to The Protection of Civilian Persons in Time of War dealing with 

145 



But where the limits of the legitimate "military objective" — against 
which bombardment is lawful — are to be drawn is a question to which no 
precise answer can presently be given. It need hardly be stated that the 
outstanding feature of warfare in the twentieth century is the constant ex- 
pansion of the military objective. The effects of this expansion have not 
been without substantial effect in broadening the scope of action permitted 
to belligerent naval forces in attacking the cities, towns and ports of an 
enemy. It is in aerial warfare that the effects of this expansion have 
proven the most far reaching though, and given the importance of aircraft 
as a component part of the naval forces of belligerents the problem of aerial 
bombardment deserves at least brief comment. 

The developments to date in aerial warfare provide an impressive illus- 
tration of the limited results that may follow from the attempt to apply 
directly to a novel form of warfare the general principles of the law of war, 
and particularly the principle requiring that a distinction be drawn between 
combatants and non-combatants. It has been asserted time and again on 
high authority that the minimum restrictions upon aerial bombardment 
are that non-combatants must not be made the object of direct attack, such 
attack being unrelated to a military objective, and that attack for the 
purpose of terrorizing the civilian population is forbidden. 51 Yet the 

the establishment of hospital, safety and so-called neutralized zones. Thus Article 14 of this 
Convention provides for the conclusion of agreements between the Parties to a conflict 
establishing "hospital and safety zones and localities so organized as to protect from 
the effects of war, wounded, sick and aged persons, children under fifteen, expectant mothers 
and mothers of children under seven." And Article 15 provides for the establishment, again 
only by mutual agreement, of neutralized zones intended to shelter from the effects of war "(a) 
wounded and sick combatants or non-combatants; (b) civilian persons who take no part in 
hostilities, and who, while they reside in the zones, perform no work of a military character." 
These provisions are indicative of the state to which the practices of belligerents, and particu- 
larly the practices of aerial bombardment, have reduced the combatant-non-combatant dis- 
tinction. It is significant to note that those civilian persons able to enjoy the protection of 
neutralized zones must perform no work of a "military character." Presumably this would 
include — though the phrase is far from clear — all those working in factories producing war 
materials, at the very least a large percentage of the population. 

Finally, passing note should be taken of Article 6 of Hague IX requiring that, military 
exigencies permitting, the commander of attacking naval forces "before commencing the 
bombardment, must do his utmost to warn the authorities." And see Law of Naval Warfare, 
Article 62.3. In effect, warning is dependent upon the discretion of the commander of the 
attacking naval or aerial forces, though whenever possible it should be given. 

51 Law of Naval Warfare, Article 611 b, c. — Article 7.2. of the 1913 Rules of Aerial War- 
fare stated: "Aerial bombardment for the purpose of terrorizing the civilian population, of 
destroying or damaging private property not of military character, or of injuring non-com- 
batants, is prohibited." The principles embodied in Article 2.2. were subsequently reaffirmed 
on several occasions prior to World War II by the League of Nations and other international 
bodies. Further, they were given prominent expression in the military manuals of many states. 
During World War II the belligerents never failed to render verbal service to these principles, 
if only by resolutely denying that aerial raids were taken against non-military objectives or in 
order to terrorize the civilian population. 

146 



practical significance of these restrictions in their application to aerial 
bombardment ought not to be overestimated, particularly by drawing mis- 
leading analogies with other forms of warfare. In bombardment by land 
or by naval forces it may still prove possible to determine with some degree 
of assurance when the civilian population deliberately has been made the 
object of direct attack, such attack being unrelated to a military objective. 
In aerial bombardment the difficulties involved in reaching a similar de- 
termination are obviously far greater; so much greater, in fact, that in the 
absence of specific rules commanding the general agreement of states, and 
providing for the detailed regulation of aerial bombardment, the mere 
attempt to apply directly the general principle distinguishing between 
combatants and non-combatants must prove in its effects far more apparent 
than real. 52 

It should be made clear, therefore, that the ominous threat posed by 
aerial warfare is not simply a result of the failure to agree upon what 
constitutes a military objective, against which bombardment is permitted, 

52 This would appear to be one reason for the significant absence of war crimes trials 
in which the accused were charged and convicted of terror bombing undertaken against the 
civilian population. And although one of the charges of war crimes listed in Article 6 of the 
Charter of the International Military Tribunal at Nuremberg was "the wanton destruction of 
cities, towns, or villages, or devastation not justified by military necessity", none of the accused 
was convicted of deliberately ordering the bombardment of civilian populations. In the 
Einsatzgruppen Trial there is an interesting passage in the Tribunal's judgment which reads as 
follows : 

"A city is bombed for tactical purposes; communications are to be destroyed, rail- 
roads wrecked, ammunition plants demolished, factories razed, all for the purpose of 
impeding the military. In these operations it inevitably happens that non-military 
persons are killed. This is an incident, a grave incident to be sure, but an unavoidable 
corollary of battle action. The civilians are not individualized. The bomb falls, it 
is aimed at the railroad yards, houses along the tracks are hit and many of their oc- 
cupants killed. But that is entirely different, both in fact and in law from an armed 
force marching up to these same railroad tracks, entering those houses abutting thereon, 
dragging out the men, women, and children and shooting them. (U. S. v. Otto 
Ohlendorf et al.~) Trials of War Criminals 4 (1949), p. 467. 
No doubt there is a difference in law between the deliberate killing of the civilian 
population by forces on land and the incidental — though unavoidable — injury to the civilian 
population through aerial bombardment of military objectives. But this difference does noc 
do away with the consideration that the danger to the non-combatant population may be, in 
fact, far greater as a result of the "unintentional" injury inflicted by aerial bombardment than 
intentional acts committed by land forces. More important, however, there remains un- 
answered the question as to the methods of determining in practice when the civilian popu- 
lation has been made the deliberate object of attack by aerial bombardment. It is precisely the 
difficulties involved in reaching such a determination that has led Lauterpacht to admit that 
the practical importance of the prohibition against resorting to the bombing of the civilian 
population for the "mere purpose of terrorization ... is of limited value. In most cases 
centres of civilian population will in any case constitute centres of communication or contain 
or be located in the vicinity of some objectives which the attacking belligerent will claim to be 
of military importance. In these cases the terrorization of the civilian population, however 
real in intention and effect, can plausibly be represented as being incidental to attack upon 
military objectives." "The Revision of the Law of War," p. 368. 

399334—57 11 147 



though of course this failure is itself one of considerable moment. Even 
if it were possible to assume substantial agreement today upon this latter 
question there would remain the problem of determining the limits of the 
"incidental" or "indirect" injury that may be inflicted upon the civilian 
population in the course of attacking such objectives from the air. 53 

Here again, analogies drawn from land or naval warfare are frequently 
resorted to whose relevance can only prove — at best — extremely limited. 
It is quite true that the immunity of non-combatants from the injurious 
effects of bombardment by land or naval forces has never been considered 
absolute. In land warfare those measures permitted within the immediate 
zone of military operations may afford very little protection to the civilian 
population located therein. In naval warfare a commander need not 
abstain from the bombardment of "undefended" coastal areas even though 
"unavoidable damage" may be inflicted upon the lives and property of the 
civilian population located in the near vicinity of military objectives. 54 

53 The solution to these problems put forward in Article 2.4 of the draft 192.3 Rules of Aeria 1 
Warfare may be summarized. Bombardment undertaken outside the immediate neighborhood 
of the operations of land forces (i. e., combat zone) was considered as legitimate only when 
"directed exclusively" at the following objectives: military forces; military works; military 
establishments or depots; factories constituting important and well known centres engaged in 
the manufacture of arms, ammunition, or distinctively military supplies; lines of communication 
or transportation used for military purposes. In addicion, Article 2.4 stipulated that where 
these objectives are so situated that they cannot be bombarded without the "indiscriminate 
bombardment of the civilian population" aircraft must abstain from attacking them. This 
prohibition against "indiscriminate bombardment" is not made dependent upon the intent of 
the attacker, but simply upon whether it is in fact possible in a specific instance to bombard 
military objectives without indiscriminately bombing the civilian population in the near 
vicinity. The point raised is an important one even today, since experience seems to indicate 
that although it is next to impossible to determine when the civilian population has been made 
the deliberate object of attack, unrelated to a military objective, it is by no means impossible to 
determine when the civilian population has been indiscriminately bombarded in the course of 
attacking military objectives. Indeed, it seems reasonably clear that the so-called target-area 
bombings of World War II entailed the indiscriminate bombardment of the civilian population, 
even though the primary purpose was to strike at an enemy's military resources. It is sub- 
mitted that on this decisive point Spaight (op. at., pp. 2.59 ff.) is — at best — confusing. On the 
one hand, he endorses the legality of target-area bombing by declaring that: "If in no other 
way than by target-area bombing can a belligerent destroy his enemy's armament centres and 
interrupt his enemy's process of munitionment, then target-area bombing cannot be considered 
to offend against the principles of the international law of war .... Military effectiveness 
has been the test and by that test target-area bombing passes muster" (p. 2.71). On the other 
hand, Spaight insists that: "nothing that has happened in the second World War has shaken 
the legal objection to indiscriminate bombing. Against that kind of war-waging international 
law still sets its face" (p. Z77). Presumably, this approval of target-area bombing and dis- 
approval of indiscriminate bombing has as its basis the belief that the latter is unlawful because 
it is deliberately aimed against the civilian population. But this opinion is misplaced, since 
indiscriminate bombardment need not depend upon the element of intent. Nor is it easy, in 
this connection, to follow Spaight's stricture that: "while target-area bombing comes close to 
the border-line of permissibility, atom bombing definitely oversteps it" (p. 2.76). The latter 
need not prove any more indiscriminate in its effects than the former. 

54 Hague IX, Article z. 

148 



Generally speaking, however, these examples — taken from the older forms 
of warfare — applied only to limited areas, and even then have been re- 
garded as exceptional departures from the normal rule. But in aerial 
warfare the potential area of bombardment operations has no limitations 
save that of the ever expanding concept of the military objective, and what 
has formerly been an exceptional situation now threatens to become a 
normal condition. Given these circumstances the problem of determining 
the limits of the "incidental" injury that may be inflicted upon the civilian 
population in the course of attacking military objectives become crucial. 
The failure to provide a concrete solution to this problem may well mean 
that from a practical point of view the general prohibition against making 
non-combatants the direct object of attack will prove no more than nominal. 
At the present time though there is no indication that any solution holding 
the possibility of imposing detailed and effective restraints upon belligerents 
is in sight. 55 

55 Of necessity, the above remarks cut short a rather complicated development. But the 
essential outlines of this development have been presented. They may be summarized by stat- 
ing that so long as uncertainty exists both as to the nature of the military objective against 
which aerial bombardment is permitted and the limits of the indirect injury that may be in- 
flicted upon the civilian population in attacking such objectives the reaffirmation of general 
principles must unfortunately prove largely illusory. Thus it is of little use to suggest that 
the limits of the indirect injury permitted against non-combatants may be determined by 
weighing the military advantage to be gained against the injury that will be caused to non- 
combatants. If the experience of World War II is at all indicative of how belligerents will 
carry out this vague procedure it is clear that the scales will be weighted heavily in favor of 
military advantage. In fact, it would seem that this path easily leads to the justification of 
indiscriminate bombardment and the consequent obliteration of the combatant — non-com- 
batant distinction. — In a penetrating criticism of the problems raised by aerial bombardment 
in World War II, Professor Stone (pp. cit., p. 630) writes that the protection afforded civilians 
against deliberate attack through aerial bombardment "when such 'incidental' attack is clearly 
licensed, is verbal merely ..." and that even more important than the "deceptive futility" 
of the general prohibition against the deliberate attack on civilians is "that by preserving the 
confusion of issues it prevents any real approach to agreed legal regulation." The confusion, 
according to Stone, lies in the failure to distinguish between the "quasi-combatant workforce 
and genuine civilians," and to recognize that belligerents "do regard the morale of the enemy's 
quasi-combatant workforce as a military objective." His proposal, therefore, is to effect a 
separation between these two categories of the civilian population, acknowledge the bellig- 
erent's right to strike at the quasi-combatant workforce, and set up effective safeguards for other 
civilians. The practical difficulties in the way of this proposal — already made prior to World 
War II — are admittedly enormous when applied to the entire populations of states. At the 
very least it would be essential to provide clear criteria for distinguishing between those in- 
dividuals engaged in work of a "military character" and those not so engaged. As already 
noted, Article 15 of the 1949 Geneva Convention on the Protection of Civilian Persons makes 
this same distinction with respect to "neutralized zones," though offering no criteria for 
applying it in practice. Furthermore, even if such criteria could be provided the resulting 
dislocation involved in so separating belligerent populations would be staggering. Finally, 
the guarantee of effective observance would require both continuous inspection by neutral 
parties and a rather large degree of mutual trust as between the belligerents. Recent experience 
indicates, however, that there is small reason for believing that either of these conditions 
could be readily obtained. 

149 



V. ENFORCEMENT OF THE LAW OF NAVAL 

WARFARE 

There are a number of means available to belligerents for inducing com- 
pliance with the rules governing war's conduct. 1 In the event of unlawful 
behavior on the part of an enemy remedial action may take the form of 
direct protest and demand for compensation as well as for the punishment 
of individual offenders. Assuming, however, that the unlawful behavior 
in question has either been directly instigated by order of the enemy govern- 
ment, or at least performed with its sufferance, other measures will generally 
prove necessary. 2 The injured belligerent may direct an appeal to neutral 
states, requesting the latter to intervene for the purpose of bringing pressure 
to bear upon the delinquent party. 3 And although neutral states have no 
duty to protest against the commission of illegitimate acts of warfare it has 
been frequently asserted that they have a right to do so. 4 Finally, the in- 
jured belligerent may resort to repressive measures — sanctions — in reaction 
to unlawful behavior on the part of an enemy, measures which take the 
form of reprisals or of punishing captured offenders as war criminals. It 
is to these two latter categories of measures that attention will be directed 
in the following pages. 



1 See Law of Naval Warfare, Section 300, for an enumeration of the types of remedial action 
an injured belligerent may resort to in the event of unlawful behavior on the part of an enemy. 

2 It may be, of course, that the primary purpose of protesting the unlawful behavior is to 
influence world opinion against the offending belligerent. Protests may be communicated 
direct to the enemy state, through a protecting power, a humanitarian organization acting 
in the capacity of a protecting power, or any state not participating in the conflict. 

3 Neutral states may provide their good offices to the belligerents with a view to settling 
the controversy. 

4 "There can be no doubt that neutral States . . . may, either singly, or jointly and collec- 
tively, exercise intervention whenever illegitimate acts or omissions of warfare are committed 
(1) by belligerent Governments, or (%) by members of belligerent forces, if the Governments 
concerned do not punish the offenders and compensate the sufferers. . . . But although neutral 
States have without doubt a right to intervene, they have no duty to do so." Oppenheim- 
Lauterpacht, op. cit., pp. 559-60. — Experience has shown that it is particularly in warfare 
at sea that neutral states have been vigilant to protest against unlawful belligerent behavior, 
even though such behavior may only directly concern for the moment the other belligerent. 
The reason for this is the intimate relationship between observance of belligerent rights and 
observance of neutral rights, violations of the former being either concomitant with or leading 
to violations of the latter. Needless to say, the effect of such neutral intervention will be directly 
proportional to the strength of the neutral states and the vigor with which protests are pressed. 

150 



A. REPRISALS 

As between belligerents reprisals are acts, otherwise unlawful, which are 
exceptionally permitted to one belligerent as a reaction against illegal acts 
of warfare committed by an enemy. 5 It is generally acknowledged that 

5 See Law of Naval Warfare, Section 310a. In a recent survey of the problem of war reprisals 
the latter are defined as "otherwise illegitimate acts of warfare which under certain conditions 
may legally be used by a belligerent against the enemy in order to deter the enemy from a 
repetition of his prior illegal acts and thus to enforce compliance with the generally recognized 
rules of war." A. R. Albrecht, "War Reprisals in the War Crimes Trials and in the Geneva 
Conventions of 1949," A. J. I. L., 49 (1953), p. 590. — It is preferable that a distinction be 
drawn between 'reprisals', in the strict sense of the term, and other 'collective measures' a 
belligerent may take, particularly against the population of an occupied territory. Whereas 
both types of measures involve the principle of collective responsibility, the basis for and 
consequences of these two types of measures differ. The legal basis for a reprisal — in the strict 
sense — must be an unlawful act ordered or authorized by the enemy government, or at least 
an unlawful act performed by the armed forces of an enemy which — though performed without 
higher authorization — is not met with measures of repression and (possibly) of compensation. 
Illegitimate acts of warfare may be performed by individuals — particularly by the enemy 
population in occupied territory — which cannot be attributed either directly or indirectly to 
the enemy state. As against these latter acts a belligerent appears to be permitted by customary 
law to take collective measures of repression, so-called "collective sanctions." In the war 
crimes trials held after World War II there does not appear to have been a case involving reprisals 
in the strict sense. Instead, the trials involving so-called "reprisals" dealt in reality with the 
measures of repression taken by Germany against civilian populations in occupied territories 
for allegedly illegitimate acts of warfare performed by individual members of the population. 
In two trials a distinction was drawn between reprisals — in the strict sense — and other collec- 
tive measures of repression. In the Trial of Hans Ranter the Netherlands Special Court of Cassa- 
tion declared that: "In the proper sense one can speak of reprisals only when a State resorts, by 
means of its organs, to measures at variance with International Law, on account of the fact 
that its opponent — in this case the State with which it is at war — had begun ... to commit 
acts contrary to International Law . . ." Law Reports . . . 14(1949), p. 13Z. In the second trial 
an Italian Military Tribunal at Rome stated that "the right to take reprisals arises only in 
consequence of an illegal act which can be attributed, directly or indirectly, to a State. On 
the other hand, if civilian citizens of the occupied State commit criminal acts within the occu- 
pied territory which harm the occupying state, and if the search for the culprits proves to be a 
matter of considerable difficulty, partly owing to the solidarity of the population, it is permis- 
sible to impose collective sanctions." In re Kappler, [1948], Annual Digest and Reports of Public 
International Law Cases, (1948), Case No. 151, p. 47Z. At the same time, most tribunals — 
particularly the American and British — insisted upon referring to the collective measures taken 
against civilian populations in occupied territories as "reprisals," thereby obscuring the fact 
that there are important differences between these measures and the measures belligerents may 
take against illegitimate acts of warfare performed by the armed forces of a state under the 
command or authorization of the government. There is no intention here of undertaking an 
analysis of these trials. It is sufficient only to state that despite a lack of uniformity in certain 
respects over the restrictions imposed upon a belligerent occupant in taking hostages and so- 
called "reprisal prisoners" (and even of executing them in the event of absolute necessity), 
there was a general consensus that such collective measures were — in principle — permitted, 
but that Article 50 of the 1907 Hague Regulations (IV) demanded, at the very least, that a 
clear connection be established between the victims of collective measures and the illegal 
actions which gave rise to these measures. See, for example, the Hostages Trial (Trial of Wil- 
helm List and Others') Trials of War Criminals, 11 (1950), pp. 1x49-53 and the Einsatzgruppen 

151 



since the purpose of reprisals is to induce compliance with the laws of war 
reprisals should not be resorted to merely for revenge but only as a last 
resort in order to compel an enemy to desist from unlawful behavior. For 
this reason the injured belligerent should attempt, whenever possible, to 
obtain cessation of the illegal acts (and appropriate redress) through means 
other than reprisals. It is always preferable that if measures of reprisal 
are finally resorted to the order to employ them should emanate from the 
highest authority. However, in circumstances of urgent necessity it is 
conceded that subordinate military commanders may, on their own initia- 
tive, order appropriate reprisals. In all cases, reprisals must be terminated 
once they have achieved their objective, which is to induce a belligerent 
to desist from unlawful conduct and to comply with the rules regulating 
the conduct of war. 6 

According to customary law measures of reprisal may be directed gener- 
ally against the persons and property of an enemy. There need be no con- 
nection between the individuals performing the unlawful acts which give 
rise to the right of reprisal and the individuals made the objects of retalia- 
tory measures. In a word, the essential principle characterizing measures 
of reprisal is that of collective responsibility. However, as between the 
parties to the 1949 Geneva Conventions, the individuals (and their property) 
who may be made the objects of reprisals have been substantially restricted. 
For these Conventions prohibit the taking of reprisals against any of the 
several categories of individuals afforded the protection of the Conventions. 7 
But apart from the prohibitions contained in the 1949 Geneva Conventions 



Trial (U. S. v. Otto Ohlendorf et al.~), Trials of War Criminals, 4 (1950), pp. 460 ff. It is, in fact, 
precisely this latter requirement that clearly illustrates the difference in the legal consequences 
attached to illegitimate acts of warfare which may be attributed directly or indirectly to the 
state, and the legal consequences attached to similar acts which cannot be so attributed. In 
the former cases the reactions are properly termed reprisals, and according to customary law 
reprisals may be directed against any or all of the population or property of the offending state. 
In the latter cases (of so called "reprisals," or, more accurately, "collective sanctions") the 
objects of repression are much more narrowly circumscribed by the customary law. The distinc- 
tion was well summarized in the Kappler case, cited above, where it was declared that the 
legal consequence of reprisals is that "the injured state may effect any interest of the injuring 
state by means of reprisals." But the "collective santions" other than reprisals, "arises only 
if a strict connection, either in respect to the locality or in respect of the service or office, can 
be established between the authors' of an attack and the civilian population" (pp. 474-9). 

6 See Law of Naval Warfare, Section 310b. It must be noted that a large measure of uncertainty 
characterizes many of the customary rules, summarized above, allegedly regulating the resort 
to reprisals. Thus it is by no means clear — at least not from belligerent practice — that reprisals 
may be resorted to only when other means prove to be of no avail. In recent maritime warfare 
belligerents have but rarely sought to take other remedial measures against allegedly unlawful 
behavior before resorting to reprisals. In many instances reprisals have been taken at the first 
possible opportunity, the belligerents seemingly welcoming the opportunity presented by an 
enemy's actions to escape from rules found to be unduly restrictive (see pp. 30-1, 188-90). 

7 See Law of Naval Warfare, Section 3ioe and notes thereto. 

152 



the only remaining restriction 8 laid upon belligerents is that forbidding 
retaliatory measures which are out of all proportion to the unlawful 
behavior forming the basis of the reprisals. 9 

B. PUNISHMENT OF WAR CRIMINALS 

War crimes may be defined as acts which violate the rules regulating the 
conduct of war and which result in the liability to punishment of the per- 
petrators. 10 According to customary international law belligerents have 

8 At least this is the only remaining restriction laid upon belligerents in resorting to reprisal 
action directed exclusively against enemy persons and property. Quite different considera- 
tions arise in the case of inter-belligerent reprisals which affect neutral rights (see pp. 188-90, 
2.54-8). The restrictions placed upon inter-belligerent reprisals adversely affecting neutral 
interests — assuming the legitimacy, in principle, of such measures — ought not to be confused 
with the restrictions operative solely as between belligerents. 

9 See Law of Naval Warfare, Section 310c — This latter restriction has never been easy to apply, 
if only for the reason that measures of reprisal need not consist of the same measures as the 
original illegality. Nor has it ever been entirely clear whether the "proportionality" required 
of reprisals must be judged by the character of the enemy's unlawful behavior or by the measures 
necessary to compel the enemy to desist from such behavior. In the main, the weight of author- 
ity has tended to emphasize the former as providing the proper criterion for judging the "pro- 
portionality of reprisals." Yet there is a good deal to be said for the latter criterion, since 
the real purpose of reprisals is to compel an enemy to desist from unlawful behavior. For 
a review of the principle reprisal measures taken by the naval belligerents in the two World 
Wars, see pp. Z96-315. 

Prior to 1914 there had been no significant attempt to resort to retaliatory measures in mari- 
time warfare for over a century, and it is not surprising to find reprisals being dismissed in the 
years preceding World War I as "an almost wholly obsolete form of action." U. S. Naval 
War College, International Law Discussions, 1903, p. 43. It need hardly be pointed out that this 
opinion reflected the extremely favorable conditions attending the conduct of naval hostilities 
during the nineteenth century. These conditions did not obtain during the two World Wars, 
and as a consequence the belligerent resort to reprisals formed one of the regular features of 
naval hostilities. Elsewhere (see pp. 30-1) the question has been raised as to what extent 
the reprisal structure erected by the belligerents may be considered as having served a "legis- 
lative" function, i. e. of subverting the traditional law, rather than an enforcement function. 
Certainly this question admits of no easy and sweeping answer, and although it is quite clear 
that in numerous instances belligerent reprisals have succeeded in replacing traditional rules, 
in other instances the effect of reprisals upon the traditional law is still far from apparent. 
Even greater caution must be exercised in evaluating the effects of reprisal measures bearing 
adversely upon neutral rights (see pp. 193-5, 315—7). 

10 See Law of Naval Warfare, Section 32.0 for a definition and an enumeration of representative 
war crimes. Although, in the main, war crimes have reference to illegal acts of warfare 
committed by members of the armed forces of belligerents, it should be noted that war crimes 
may be committed by civilians as well. Generally speaking, the classification of an act as a 
war crime has been held to follow from the fact that the act performed has a direct relation 
to the conduct of war and, at the same time, is prohibited by the law of war. War crimes in 
the narrow and traditional sense, as defined above, are to be clearly distinguished from so called 
'crimes against peace,' i. e., acts which consist in the planning, preparation, initiation or waging 
of an unlawful war. The distinction between 'crimes against peace' and war crimes in the 
narrow sense (as well as the distinction between 'crimes against humanity,' and war crimes) 
was initially set forth in Article 6 of the Charter of the International Military Tribunal at 

153 



the obligation to punish their own nationals found violating the law of 
war and the right — in principle — to punish captured enemy individuals 
who have committed similar acts. 11 Prior to World War II, however, 

Nuremberg, and followed by the American military tribunals in the 'subsequent Nuremberg 
proceedings' as well as by the International Military Tribunal for the Far East (Tokyo Tribunal). 
In recent years the term war crimes has been used not infrequently to refer to 'crimes against 
peace' (and 'crimes against humanity') in addition to violations of the rules governing war's 
conduct. Unfortunately, one result of this usage has been to obscure the fact that there is 
no novelty attached either to the concept of war crimes — in the narrow sense — or to the punish- 
ment of individuals who violate the rules regulating the conduct of war. So far as war crimes 
in the traditional sense are concerned, the novelty of the post World War II period must rather 
be found in the number of enemy individuals charged with war crimes, in the vigor with which 
they were tried and punished, in the development of the rules governing the procedure of war 
crimes tribunals, and — very important — in the marked extension of the limits of individual 
responsibility for violations of the laws of war. A lucid review of state practice prior to 
World War II with respect to war crimes is given by Lord Wright, History of The United Nations 
War Crimes Commission and the Development of the Law of War (1948), pp. 40-86. The literature 
to which World War II developments have given rise is vast and — as might be expected — 
frequently controversial in character. Perhaps the most useful source for the decisions of war 
crimes tribunals in this later period is the Law Reports of Trials of War Criminals, consisting of 
15 volumes, and selected and prepared by the United Nations War Crimes Commission over 
the years 1946-49. Volume 15 contains a systematic analysis and summary of the 89 representa- 
tive decisions (which do not include, however, the trials of the major war criminals before 
the Nuremberg and Tokyo International Military Tribunals) reported in the first 14 volumes. 
In the period following the termination of hostilities in 1945 the United States alone conducted 
956 war crimes trials involving over 3,000 defendants. 

11 Provided the most rudimentary requirements were fulfilled, the customary law traditionally 
permitted each belligerent to establish its own system of tribunals, to create its own procedure 
to govern the trial of war criminals, and to impose whatever penalties it deemed just upon 
individuals found to have committed war crimes. This was, at least, the situation that pre- 
vailed prior to World War II, belligerents having only the obligation — under international 
law — to refrain from imposing punishment upon captured members of an enemy's armed forces 
accused of war crimes without first granting the accused the benefit of a "trial." However, 
as a result of state practice during and following the second World War, and in consequence of 
obligations undertaken in the 1949 Geneva Convention Relative to the Treatment of Prisoners 
of War, the situation formerly prevailing with respect to the trial of captured enemy personnel 
accused of war crimes has been substantially altered. The cumulative effect of these recent 
developments has been to impose upon belligerents the obligation to accord the accused certain 
minimum requirements of a "fair trial." These procedural requirements of a fair trial were 
originally set forth in section IV of the Charter of the International Military Tribunal at 
Nuremberg and subsequently endorsed by other war crimes tribunals — national and inter- 
national. They provide that the accused be informed of the charges made against him in a 
language he understands, that he have adequate time to prepare his defense, that he have aid 
of counsel, that he be permitted to attend trial and to give evidence, and that he have an inter- 
preter if needed. — The 1949 Geneva Convention on prisoners of war provides — Article 102. — 
that a prisoner of war "can be validly sentenced only if the sentence has been pronounced by 
the same courts according to the same procedure as in the case of members of the armed forces 
of the Detaining Power, and if, furthermore, the provisions of the present Chapter have been 
observed." The effect of this provision is to guarantee enemy prisoners on trial for war crimes 
the minimum requirements of a fair trial, summarized above. However, if a state goes beyond 
these minimum requirements for members of its own armed forces, then it must grant the same 
procedure to prisoners of war on trial for war crimes. — Finally, it may be noted that in reviewing 

154 



some doubt had existed as to whether or not a belligerent was entitled to 
exercise jurisdiction over individuals accused of war crimes when the acts 
in question were not performed either on the territory of the belligerent or 
against its nationals. But in the light of recent practice it now appears 
clear that the right of a belligerent to exercise such jurisdiction is limited 
neither to offenses having a particular geographical location nor to offenses 
committed against the nationals of the belligerent claiming jurisdiction. 12 
In addition, there is no rule of customary law preventing a belligerent from 
trying and punishing war criminals during the period following the termi- 
nation of active hostilities but prior to the conclusion of a peace treaty, 
though the past practice of states has not been to continue proceedings 
against individuals accused of war crimes once peace has been re-estab- 
lished. 13 

the nature of the penalties imposed upon war criminals by Allied courts and tribunals after 
World War II, one authoritative source has concluded that "despite the fact that international 
law has previously permitted the death sentence to be passed for any war crime, some kind of 
international practice is growing according to which Allied Courts, apart from avoiding 
inhumane punishment, have themselves attempted to make the punishment fit the crime; any 
habitual practice of this kind would tend in time to modify the general rule that any war crime 
is punishable by death." Law Reports ... 15 (1949), p. zoi. 

12 It is generally agreed that post World War II practice has firmly established the so-called 
principle of "universality of jurisdiction over war crimes," thereby permitting belligerents to 
exercise jurisdiction over individuals accused of war crimes without regard to the place where 
an offense was committed or to the nationality of the victims. In its most general form this 
principle might well be interpreted to permit neutral states to try and punish war criminals 
who fall under their control. But there is no record of neutral states making such an attempt, 
and the right of neutrals to do so remains doubtful. 

13 "We cannot say that there is no authority to convene a (military) commission after hos- 
tilities have ended to try violations of the Law of War committed before their cessation, at 
least until peace has been officially recognized by treaty or proclamation of the political branch 
of the Government. In fact, in most instances the practical administration of the system of 
military justice under the Law of War would fail if such authority were thought to end with 
the cessation of hostilities. For only after their cessation could the greater number of offenders 
and the principal ones be apprehended and subjected to trial." In re Yamashita, 32.7 U. S. 1 
(1946). Of course, an armistice agreement terminating hostilities may itself make provision 
for the trial of war criminals. But if it does not belligerents may nevertheless prosecute those 
enemy individuals accused of war crimes who fall under their control. Following World War 
II the trial of German nationals accused of war crimes before Allied courts and tribunals was 
based not only upon the customary right of belligerents to try and punish violators in their 
tribunals but also upon the unconditional surrender of Germany and the assumption of supreme 
authority over Germany by the four occupant Powers (the United States, Great Britain, France 
and the Soviet Union). The legal basis for the trial of Japanese war criminals was expressly 
provided for in the armistice terms by which Japan unconditionally surrendered to the victorious 
United Nations. On the other hand, the effect of a peace treacy is to bring to a close the right 
to prosecute war criminals, unless the treaty of peace itself makes express provision to the 
contrary. Such provision was made after World War I in Articles -rvj and 2.z8 of the Treaty 
of Versailles. And in the 1947 peace treaties concluded between the Allied and Associated 
Powers and Bulgaria, Finland, Rumania, and Italy, provision was also made for the trial of 
persons accused of committing war crimes (as well as crimes against peace and crimes against 
humanity). 

155 



It is an interesting fact that among the war crimes trials held during and 
since the second World War only a relatively small number concerned 
violations of rules regulating the actual conduct of hostilities. 14 In part, 
this may be explained by a reluctance to try members of the armed forces 
of the defeated states for the violation of rules whose status is no longer a 
matter of certainty. 15 In part, the dearth of trials concerned with infrac- 
tions of the rules regulating the actual conduct of hostilities may be attrib- 
uted to the conviction that where both sides in a conflict openly departed 
from the established law, the requirements of justice forbade the prosecu- 
tion of only those who happened to be on the defeated side. 16 

There is little question, however, but that the commission of certain 
acts during the course of hostilities at sea must continue to be regarded as 
resulting — in the absence of special reasons to the contrary — in the indi- 
vidual (criminal) responsibility of the perpetrators. The unnecessary use 
of force particularly as against the merchant vessels of an enemy, the 
denial of quarter at sea, the firing upon survivors of sunken ships, the failure 
to search out and make provision for the survivors of sunken vessels when 
military interests so permit, the deliberate attack upon hospital vessels or 
other vessels granted special immunity, and the misuse of the Red Cross 
emblem constitute a summary of only the more important acts the com- 



14 So far as naval hostilities are concerned, these reported trials have all been cited in a previous 
section dealing with the attack upon and destruction of enemy vessels (see pp. 70-3). There 
are no records at all of trials relating to illegitimate conduct in aerial warfare. Law Reports 
... 15 (1949), pp. 109-iz. The great bulk of the war crimes trials dealt instead with offenses 
committed against prisoners of war and the civilian inhabitants of occupied territory. 

15 The American military tribunal in the I. G. Farben Trial took note of this point by stating 
that: "It must be admitted that there exist many areas of grave uncertainty concerning the 
laws and customs of war . . . Technical advancement in the weapons and tactics used in the 
actual waging of war may have been made obsolete, in some respects, or may have rendered 
inapplicable, some of the Hague Regulations having to do with the actual conduct of hostilities 
and what is considered legitimate warfare. But these uncertainties relate principally to mili- 
tary and naval operations proper and the manner in which they shall be conducted." (Trial of 
Carl Krauch and Twenty Two Others*), Law Reports ... 10 (1949), pp. 48-9. 

16 It was this consideration, among others, that the International Military Tribunal gave 
expression to in refusing to assess the sentence of Admiral Doenitz "on the ground of his breaches 
of the international law of submarine warfare." Elsewhere (see p. 3oz(n)) it is submitted that 
in so far as the "facts" upon which the Tribunal allegedley based this aspect of the judgment 
were held to justify refusal of sentence for the sinking without warning of neutral merchant 
vessels — serious objections must be raised. With respect to the facts held to justify refusal of 
sentence for the sinking without warning of enemy merchant vessels the matter is admittedly 
quite different (see pp. 67-9). There are no reported trials of naval personnel for the act of 
having attacked enemy merchant vessels without first attempting to seize such vessels and put 
passengers and crew in a place of safety before resorting to destruction. The argument that 
this failure to try individuals for the attack without warning of enemy merchant vessels points 
to the desuetude of the traditional rules — at least as these rules apply to submarine and aircraft — 
is difficult to accept, however. 



156 



mission of which may result in a liability to punishment upon capture by 
an enemy. 17 

Where individuals have been charged with the commission of war crimes 
the principal difficulty has been that of determining what recognition ought 
to be given the defense plea that the acts in question were performed either 
by order of the belligerent government or on the command of a superior. 18 
Prior to World War II the attitude of states — and the opinions of writers on 
the law of war — had varied with respect to the treatment to be accorded the 
plea of superior orders, though a relatively strong case may be made on 
behalf of the assertion that illegitimate acts of warfare performed by direct 
order of the state were not considered to result in the individual responsi- 
bility of those performing such acts. 19 

A decided change from earlier opinion and practice occurred both during 
and after the 1939 war. While that conflict was still in progress several of 
the belligerents amended their military manuals to provide that a violation 
of the law of war is not deprived of its character of a war crime, and does not 
confer upon the actor immunity from punishment, simply for the reason 
that it was performed in response to the order of a belligerent government 

17 And quite apart from the liability incurred as a result of misconduct during the course of 
naval hostilities there is — of course — a further liability for those acts involving the maltreat- 
ment of the sick, wounded and shipwrecked members of an emeny's armed forces carried on 
board belligerent warships (see pp. 135-7, for a discussion of liability resulting from "grave 
breaches" of the 1949 Geneva Convention on the treatment of the wounded, sick and 
shipwrecked). 

18 The plea that illegitimate acts of war were perforned for reasons of military (or "opera- 
tional") necessity has already been considered in another connection (see pp. 36-7). 

19 The issues raised by the above statement are rather complicated, and their relevance to 
this study is distinctly limited — particularly in view of World War II practice. Nevertheless, 
some comment — however brief — is required. It will be noted, to begin with, that a distinction 
is drawn between illegitimate acts of warfare performed by order of the state and similar acts 
performed by command of a superior. It is very doubtful whether the plea of superior orders 
(i. e., whether or not the plea of superior orders should be accepted as a defense) has ever been 
directly or indirectly regulated by international law. Instead, the acceptance or rejection of 
this plea has been a matter left by international law to the discretion of the individual states. 
On the other hand, the fact that an illegitimate act of warfare was performed by order of the 
state (i. e., was an "act of state") was generally regarded as sufficient to divest the act of its 
character as a war crime (acts of espionage and war treason formed clear exceptions to the rule) 
according to international law. Against those acts which had the character of acts of state 
the injured state could take collective sanctions — i. e., reprisals — but international law was 
generally considered as excluding the individual (criminal) liability of the perpetrators. This 
followed from the rule of general international law which normally forbade one state from 
exercising jurisdiction in its courts over the acts of another state, i. e., from exercising juris- 
diction over individuals performing acts possessing the character of acts of state. As will 
presently be noted, however, recent practice appears to have firmly established that the act of 
state doctrine is no longer applicable to acts having the character of violations of the law of 
war; the fact that an individual has performed an illegitimate act of warfare by order of the 
state does not deprive the act of its character as a war crime — though, of course, this circum- 
stance may serve to mitigate punishment. 



157 



or a superior. 20 In the period following the termination of hostilities 
Allied courts and tribunals charged with the task of trying individuals 
accused of war crimes have uniformly endorsed this principle. 21 

At the same time, it has been the consensus of judicial opinion that in 
order to establish responsibility the person must know, or have reason to 
know, that the act he is ordered to perform is unlawful under international 
law. 22 Thus if the rule that allegedly has been violated is itself contro- 
versial or if — though of unquestioned validity — the rule has been departed 
from under the conviction that such departure forms a legitimate measure 



20 Both the American and British field manuals were altered in 1944. The 1944 change to 
the U. S. Army's Rules of Land Warfare (paragraph 345) provided, however, that if violations 
of the laws of war were performed by order of a belligerent government or a superior this fact 
could be "taken into consideration in determining culpability, either by way of defense or in 
mitigation of punishment." On the other hand, the British Manual of Military Law 
(paragraph 443) allowed the plea of superior orders to operate only as a factor in the 
mitigation of punishment, though liability was made dependent upon a knowledge that the 
act performed was clearly unlawful. Subsequently, Article 8 of the Charter of the International 
Military Tribunal declared that: "The fact that the defendant acted pursuant to order of his 
government or of a superior shall not free him from responsibility, but may be considered in 
mitigation of punishment if the Tribunal determines that justice so requires." A substantially 
similar provision formed a part of the Charter of the International Military Tribunal For the 
Far East and of the various United States theatre regulations governing the trial and punish- 
ment of individuals accused of war crimes. 

21 A summary of these decisions is given in Law Reports ... 15 (1949), pp. 157-60* 

22 In the Pekus Trial (Law Reports . . . 1 (1947), pp. i-ii) the defendants, other than the 
captain (whose defense was "operational necessity," see p. 73(n)) 3 pleaded the defense of 
superior orders. It was established during the course of the trial, held before a British Military 
Court sitting at Hamburg, that most of the accused had known that the captain's command to 
fire at helpless survivors struggling in the water — the war crime for which they were jointly 
charged — was not a lawful command. As against the defense argument that many rules of 
international law were vague and uncertain the Judge Advocate ruled "that if this were a case 
which involved the careful consideration of the question whether or not the command to fire 
at helpless survivors struggling in the water was lawful in International Law, the Court might 
well think that it would not be fair to hold any of the subordinates accused in this case respon- 
sible for what they were alleged to have done. In the present case, however, it must have 
been obvious to the most rudimentary intelligence that it was not a lawful command," (pp. 
14-5). All of the accused were convicted by the Court. 

The requirement of knowledge has been given prominence in recent formulations of the plea 
of superior orders in military manuals. See Law of Naval Warfare, Section 330b (1). And 
paragraph 509 of the recently revised U. S. Army Rules of Land Warfare declares: 

"The fact that the law of war has been violated pursuant to an order of a superior authority, 
whether military or civil, does not deprive the act in question of its character of a war crime, 
nor does it constitute a defense in the trial of an accused individual, unless he did not know 
and could not reasonably have been expected to know that the act ordered was unlawful. 
In all cases where the order is held not to constitute a defense to an allegation of war crime, 
the fact that the individual was acting pursuant to orders may be considered in mitigation 
of punishment. 

"in considering the question whether a superior order constitutes a valid defense, the court 
shall take into consideration the fact that obedience to lawful military orders is the duty of 



158 



of reprisal, either circumstance may prove sufficient to relieve the actor of 
responsibility. 23 Furthermore, it would appear that if an individual 
though knowing that the act he has been ordered to perform is unlawful 
nevertheless has acted under duress this circumstance may be taken into 
consideration either by way of defense or in mitigation of punishment. 24 

What has been termed the "inverse case" 25 of superior orders concerns 
the scope of the responsibility commanding officers must bear for illegiti- 



every member of the armed forces; that the latter cannot be expected, in conditions of war 
discipline, to weigh scrupulously the legal merits of the order received; that certain rules of 
warfare may be controversial; or that an act otherwise amounting to a war crime may be 
done in obedience to orders conceived as a measure of reprisal. At the same time it must be 
borne in mind that members of the Armed Forces are bound to obey only lawful orders." 

23 Apart from the more obvious objections that have been urged against the practice of 
holding individuals responsible for unlawful acts carried out in pursuance of an order by a 
superior authority, the two circumstances cited above have been singled out for special attention 
by critics. Yet a survey of the war crimes trials held after World War II indicates that the 
uncertainty of the law was seldom involved, the one major exception being the cases involving 
'collective measures' taken against occupied populations. It may also be observed that in the 
few trials concerning violations of the rules regulating hostilities at sea there are no instances 
in which individuals were punished for the violation of controversial rules or for the violation 
of rules committed in the belief that such violations constituted instead legitimate measures of 
reprisal. Thus there was never any pretense to the effect that the so-called "Laconia Order" 
(see pp. 7Z-3) represented a legitimate reprisal measure. 

24 See Law of Naval Warfare, Section 330b (1), the last sentence of which corresponds to the 
statement made in the text above — and notes thereto. — One may be said to act under duress if 
the act is performed under an immediate threat — particularly a threat of physical coercion — in 
the event of noncompliance with the order. But the threat must be, in the words of one 
tribunal, "imminent, real and inevitable," it must pose a danger "both serious and irreparable." 
The Einsatzgruppen Case (U. S. v. Otto Ohlendorf, et al.") Trial of War Criminals, 4 (1950), p. 480. 
A review of the trials in which the plea of duress was considered does not reveal, however, any 
marked uniformity in the treatment of the plea. Courts differed over those precise circumstances 
that could be held to justify the plea of duress; and they also differed over whether duress, even 
when admitted in principle, could serve only in mitigation of punishment or as a complete 
defense against the charge of having committed a war crime. The decisions bearing upon the 
plea of duress have been summarized in the following manner : 

' 'The general view seems ... to be that duress may prove a defense if (a) the act charged 
was done to avoid an immediate danger both serious and irreparable; (b) there was no other 
adequate means of escape; (c) the remedy was disproportionate to the evil. According to the 
decision in the Krupp Trial, these tests are to be applied according to the facts as they were 
honestly believed to exist by the accused. Finally, if the facts do not warrant the successful 
pleading of duress as a defense, they may constitute an argument in mitigation of punishment." 
Law Reports ... 15 (1949), p. 174. 

25 See Oppenheim-Lauterpacht (pp. cit., p. 57Z) where responsibility of the nature discussed 
above is said to arise "directly and undeniably, when the acts in question [i. e., unlawful acts 
of subordinates] have been committed in pursuance of an order of the commander concerned, 
or if he has culpably failed to take the necessary measures to prevent or suppress them. The 
failure to do so raises the presumption — which for the sake of the effectiveness of the law 
cannot be regarded as easily rebuttable — of authorization, encouragement, connivance, acqui- 
escence, or subsequent ratification of the criminal acts." 



159 



mate acts of warfare performed by subordinates. 26 There is no question 
but that military commanders are liable for the unlawful acts they have 
ordered or authorized subordinates to perform. Equally well established 
is the responsibility of military commanders for the illegal acts of sub- 
ordinates which the former had knowledge of but failed to take adequate 
measures to control. By the failure to suppress unlawful acts of subordi- 
nates as are known to military commanders, the presumption of acquies- 
cence in these acts must arise. It is clear, therefore, that the responsibility 
of commanders can result solely from inaction, though here it is inaction 
based upon a knowledge that unlawful acts of subordinates have been 
committed. Finally, it would appear that the responsibility military 
commanders must bear for the acts of subordinates implies a further duty to 
take reasonable measures to insure that the latter will refrain from unlawful 
behavior, and, should unlawful behavior nevertheless occur, to discover 
and control the misconduct of subordinates. Where the failure to take pre- 
cautionary or preventive measures is palpable and gross military command- 
ers have been held liable for the unlawful behavior of subordinates even 
though without actual knowledge of such behavior. 27 

26 The numerous cases that have come before war crimes tribunals involving the responsibility 
of military commanders for acts of subordinates are reviewed in Law Reports ... 15 (1949), 
pp. 65-78. See also Law of Naval Warfare, Section 330b (z) and notes thereto. Paragraph 
501 of the U. S. Army Rules of Land Warfare reads: 

"In some cases, military commanders may be responsible for war crimes committed by sub- 
ordinate members of the armed forces, or other persons subject to their control. Thus, for 
instance, when troops commit massacres and atrocities against the civilian population of occu- 
pied territory or against prisoners of war, the responsibility may rest not only with the actual 
perpetrators but also with the commander. Such a responsibility arises directly when the acts 
in question have been committed in pursuance of an order of the commander concerned. The 
commander is also responsible if he has actual knowledge, or should have knowledge, through 
reports received by him or through other means, that troops or other persons subject to his 
control are about to commit or have committed a war crime and he fails to take the necessary 
and reasonable steps to ensure compliance with the law of war or to punish violators thereof." 

27 The statements made in the text above are believed to represent a reasonably accurate 
summary of the numerous — and occasionally conflicting — decisions relating to the scope of 
a commanding officer's responsibility for acts of subordinates. A review of these decisions 
indicates that perhaps the central issue giving rise to uncertainty — and controversy — has been 
the liability incurred by military commanders who are unaware of the offenses committed by 
subordinates but who have failed to take reasonable measures to prevent such offenses and — 
once committed — have made little effort to discover and control them. In this connection 
the Trial of 'General Yamashita (Law Reports . . . 4(1948), pp. 1-95) is instructive. Tried before 
an American Military Commission, General Yamashita was charged and convicted of failing 
"to discharge his duty as commander to control the operations of the members of his command, 
permitting them to commit brutal atrocities and other high crimes against people of the United 
States and of its allies and dependencies, particularly the Philippines ". . ." (3-4). Although 
the prosecution asserted that Yamashita must have known of, and permitted, the offenses 
committed by his troops, it was further insisted that he had — in any event — the duty to 
"discover and control" these offenses once they were committed, and failed to do so. A 
similar view was taken by the Commission in its findings. In its review of the case the Supreme 

160 



Court emphasized that a commanding officer, particularly in occupied territory, is responsible 
for the behavior of his troops. In re Yamashita, 3x6 U. S. 1 (1946). But the Court neither 
expressly accepted nor rejected the findings of the Military Commission that Yamashita, 
even in the absence of knowledge, had the duty to "discover and control" illegal acts of sub- 
ordinates, and could be held liable for the failure to carry out this duty. Instead, the Court 
considered itself as bound by the finding of the Commission on the question of fact, namely, 
that Yamashita had known of the offenses being committed by his troops. In view of the state 
of disorganization and breakdown of communications in the Philippines at the time, this was 
a hotly disputed question — and one of the principal targets of critics of the trial. A further 
criticism was that even if Yamashita had known of the atrocities being committed by his 
troops he could not have brought a stop to this behavior since American military operations 
prevented him from exercising effective control over the members of his command. 

In the German High Command Trial (Trial of Wilhelm Von Leeb and Thirteen Others, Law 
Reports ... 12. (1949), pp. 71, 74-9, io5~ix) the tribunal assumed, with respect to some of 
the accused, that actual knowledge was essential to establish responsibility for acts of subordi- 
nates. For other defendants, however, it was maintained that the accused "should have 
had knowledge" of the offenses, that they had a duty to find out that offenses were being com- 
mitted and to stop them. — And in the Hostages Trial (Trial of Wilhelm List and Others, Law 
Reports . . . 8 (1949), p. 71) the tribunal declared that a Commanding General "... is charged 
with notice of occurrences taking place within that territory. He may require adequate reports 
of all occurrences that come within the scope of his power and, if such reports are incomplete 
or otherwise inadequate, he is obliged to require supplementary reports to apprise him of all 
pertinent facts. If he fails to require and obtain complete information, the dereliction of duty 
rests upon him and he is in no position to plead his own dereliction as a defense." 



161 



PART TWO 



399334 — 57 12 



VI. NEUTRALITY AND THE LEGAL POSITION 

OF WAR 

A. THE TRADITIONAL RELATIONSHIP BETWEEN WAR AND 

NEUTRALITY 

The changes that have marked the international order since the advent 
of the first World War undoubtedly have had a substantial effect upon the 
institution of neutrality. At the same time the task of evaluating this 
effect admits of no easy and wholly satisfactory solution. If anything, it 
seems reasonably clear that the present status of neutrality is, and will 
probably remain for some time to come, a matter over which considerable 
controversy and divergence of opinion can be expected. 

In part, this uncertainty must be attributed to the changed position of war 
in international law. It has already been observed 1 that prior to World 
War I, at least, the act of resorting to war was considered as neither legal 
nor illegal but simply a fact, situation or event, occurring periodically in 
state relations. According to this interpretation states retained the liberty 
under customary international law to resort to war whenever they deemed 
such action to be expedient. It followed that the decision by third states 
to participate or to refrain from participating in war was, as the initial resort 
to war itself, "not a matter for International Law but for international 
politics." 2 Once war had broken out, third states, not immediately in- 
volved in the hostilities, were neither under a duty to participate nor to 
refrain from participating in the hostilities. Similarly, belligerents were 
at liberty to recognize or to refuse to recognize a status of non-participation 
on the part of third states. 

Those states which refrained from participating in a war occupied a status 
of neutrality. The legal consequence of such non-participation, however, 
may be found in the fact that it served to bring into operation certain rules, 
rules presupposing an equality of legal status as between the belligerents 
with respect to the war itself, hence the duty of non-participants to fulfill 
their duties and to exercise their rights in an impartial manner toward bel- 
ligerents. These rules — which may be termed the traditional law of neu- 
trality — remained operative for the duration of a war or until such time as 
a neutral state abandoned its position of non-participation — either by at- 
tacking one of the belligerents or by being attacked by a belligerent. 3 

1 See pp. 3-4. 

2 Oppenheim-Lauterpacht, op. tit., p. 653. 

3 See pp. 196-2.02. for an analysis of the traditional concept of neutrality as well as of the 
problems relating to the commencement and termination of this legal status. 

165 



Given the obvious and close relationship between the position of war 
under customary international law and the traditional legal institution of 
neutrality, it must appear on first consideration that once the resort to war 
has been generally forbidden to states, neutrality — or, at the very least, the 
specific consequences attached to a status of non-participation in war by 
the traditional law — must be deprived of further legal justification. 4 This 
conclusion, that the foundations of the traditional system of neutrality 
have been overturned, appears particularly compelling to those who com- 
pare the obligations laid upon non-participants by the traditional system 
with the obligations incurred by member states within the system of col- 
lective security established by the Charter of the United Nations. Indeed, 
in view of recent developments many observers have ventured so far as to 
question the continued feasibility of referring to the traditional legal insti- 
tution of neutrality at all save in the historical sense. 

But although the nature of the relationship traditionally obtaining be- 
tween war and neutrality seems clear enough, the precise changes effected 
in neutrality by the altered position of war are not as readily apparent as 
has been frequently assumed. In order to analyze these changes more care- 
fully it is useful to consider the obligations imposed and the rights con- 
ferred at present upon third states during a war in which they are not im- 
mediately and directly involved as active participants. These obligations 
and rights may be considered both from the point of view of the General 
Treaty For The Renunciation of War (the so-called Pact of Paris or Kellogg- 
Briand Pact) and from the point of view of the Charter of the United 
Nations. 

B. NEUTRALITY AND THE GENERAL TREATY FOR THE 

RENUNCIATION OF WAR 

According to the provisions of the General Treaty For the Renunciation 
of War and, it may be assumed, according to present general international 
law, 5 the resort to war is permitted to states only in the following circum- 

4 ". . . the principle explanation and justification of the modern law of neutrality, conceived 
as an attitude of absolute impartiality, has now disappeared. That explanation consisted in 
the fact that, until the First World War, the right to wage war constituted an unlimited pre- 
rogative right of sovereign States; no neutral State, therefore, could arrogate to itself the right 
to pass judgment on the legality of a war and to shape its conduct accordingly. The question 
simply did not arise. In this respect the position has undergone a fundamental change. The 
unlimited right of war is no longer a prerogative of the sovereign State. International law now 
recognizes that a State may act unlawfully by the very act of declaring or going to war. It 
admits the distinction between wars which are lawful and those which are not. To that extent 
it has re-established the historic foundations of qualified — discriminatory and discriminating — 
neutrality." Lauterpacht, "The Limits of the Operation of the Law of War," p. 2.37. 

5 A note on terminology may be in order here. The term "general" international law refers 
to rules binding upon all states and is to be contrasted with "particular" international law, 
which refers to rules regulating the behavior only of certain states. Although it is possible 
that both general and particular international law can consist of rules that are either customary 

166 



stances: as a collective enforcement measure taken in accordance with the 
obligations incurred within a general system of collective security, as a 
measure of self-defense against a prior — and unlawful — resort to war, and 
as a measure of collective defense taken on behalf of a state waging a lawful 
war of self-defense. 6 Thus, apart from the obligations resulting from mem- 
bership in the United Nations, states may now be considered as generally 
forbidden to resort to war except as a measure of individual or collective 
defense against a previous — and thereby unlawful — resort to war. 7 

What, then, are the possible effects upon the institution of neutrality 
brought about by this transformation in the legal position of war? It is 
clear, to begin with, that under the General Treaty For the Renunciation of 

or conventional in origin, it is usual to associate general international law with rules of a 
customary origin and particular international law with rules of a conventional character. 
This practice is seldom misleading. There may be significant exceptions, however, especially 
with respect to conventional rules. Thus the almost universal adherence of states to the 
General Treaty for the Renunciation of War, and the absence of any time limit set upon the 
operation of its provisions, serve to give the rules contained therein a character closely akin to 
that of general international law. In view of this fact the question as to whether or not the 
position of war under customary international law has undergone change has been deprived, in 
large measure, of its former significance. In this connection, however, it is submitted that the 
correct view is that the legal position of war under customary law does not remain unaltered, 
and that customary international law may now be considered as restricting the liberty of states 
to resort to war in a manner substantially identical with the provisions contained in the Gen- 
eral Treaty for the Renunciation of War. But this latter point need not be pressed. 

6 The Preamble, in part, and the first two Articles of this Treaty, signed August irj i 1918, 
read as follows : 

"Convinced that all changes in their relations with one another should be sought only by 
pacific means and be the result of a peaceful and orderly process, and that any signatory Power 
which shall hereafter seek to promote its national interests by resort to war shall be denied the 
benefits of this Treaty; 

I The High Contracting Parties solemnly declare in the names of their respective peoples 
that they condemn recourse to war for the solution of international controversies, and renounce 
it as an instrument of national policy with one another. 

II The High Contracting Parties agree that the settlement or solution of all disputes or 
conflicts, of whatever nature or of whatever origin they may be, which may arise among them, 
shall never be sought except by pacific means." 

7 In Article I of the Pact of Paris war is renounced as "an instrument of national policy." 
However, it is clear that enforcement measures taken under then existing collective security 
arrangements (principally, measures taken under Article 16 of the Covenant of the League of 
Nations), and having the character of war, constituted a category of measures permitted by the 
Pact. It is equally clear that enforcement measures taken under Chapter VII of the United 
Nations Charter fall within this same permitted category. — The right of self-defense is a neces- 
sary consequence of the Pact and was so recognized by the contracting parties at the time of 
signature. The statement in the Pact's Preamble, that "any signatory Power which shall 
hereafter seek to promote its national interests by resort to war shall be denied the benefits 
furnished by this Treaty," has been interpreted as permitting other contracting parties the right 
to assist the state acting in self-defense. Thus in declaring war upon Germany in September 
1939 Great Britain and France claimed to exercise a right conferred upon them by the Pact. 
In this latter respect the similarity between the General Treaty For The Renunciation of War 
and Article 51 of the United Nations Charter should be noted. (See pp. 177-9). 

167 



War there is neither an obligation on the part of third states to abandon a 
status of non-participation in a war unlawfully initiated nor an obligation 
to abandon any of the rights and duties attached to the status of non- 
participation by the traditional law of neutrality. To the extent that states 
have not incurred obligations in excess of those imposed by the Pact of 
Paris there seems little question but that non-participants in a war may 
continue to invoke the traditional law of neutrality. 

At the same time, by resorting to war in violation of its obligations under 
the General Treaty For the Renunciation of War a state violates the rights 
of all other contracting Parties. The latter are thereby entitled not only to 
resort to war against the state so violating its obligations; they are also 
entitled to take measures of reprisal against the aggressor that may not in- 
volve active participation in hostilities but that may involve a departure 
from those duties otherwise imposed upon non-participants by the tradi- 
tional law of neutrality. 8 Thus the measures of discrimination taken 
against Germany in 1940-41 by the United States, although the United 
States remained at the time a non-participant in the war, were partially 
justified as measures of reprisal permitted to this country in consequence 
of Germany's resort to war in alleged violation of the Pact of Paris. 9 



8 Admittedly, the position taken above has not been accepted by many writers. The Pact 
of Paris does not expressly provide that contracting Parties may take discriminatory measures 
against a violator of its provisions. It has therefore been claimed that the only benefit furnished 
by the Treaty, which may be denied to states violating the Treaty's provisions, is the benefit 
of not being made the object of a resort to war by the other contracting Parties. However, 
states not participating in a war unlawfully initiated must observe a strict impartiality. — The 
opposing view, given expression in the text, has been formulated in the following manner: 
"The abrogation of the principle of impartiality is a legal effect which a multilateral treaty 
prohibiting the resort to war has under general international law. The right to take enforce- 
ment measures short of war as reprisals against a violator of the treaty is derived directly from 
general international law and exists even if not expressly stipulated by the treaty." Hans 
Kelsen, Collective Security Under International Law (U. S. Naval War College, International Law 
Studies, 1954), (1956), pp. 145-6. 

Also the opinion of Oppenheim-Lauterpacht (pp. cit. s pp. 644-5): "The guilty belligerent, 
by breaking the Treaty, violates the rights of all other signatories, who, by way of reprisals, 
may choose to subject him to measures of discrimination, for instance, either by actively pro- 
hibiting some or all exports into his territory or merely by submitting passively to otherwise 
unlawful measures on the part of the offending belligerent." And for an earlier opinion that 
parties to the Pact of Paris have the right to take discriminatory measures against a state 
resorting to war in violation of the Pact, see "Budapest Articles of Interpretation," International 
Law Association, Report of the 38th Conference, (1934). Nevertheless, a substantial number of 
writers have never shared this interpretation of the Pact. 

9 The Anglo-American Agreement of September 2., 1940, whereby the transfer of fifty destroy- 
ers to Great Britain was made in return for the right to lease naval and air bases, as well as 
the "Act to Promote the Defense of the United States" (Lend-Lease Act), by which Congress 
authorized the production and disposal of articles to "the government of any country whose 
defense the President deems vital to the defense of the United States," were partially justified 
as being measures of reprisal against Germany for the latter 's resort to war in violation of the 
Pact of Paris. See U. S. Naval War College, International Law Documents, 1940, pp. 74-90, 150-2.00, 

168 



In view of the possibility that the Pact of Paris may be regarded as pres- 
ently constituting general international law the right to discriminate 
against a state violating the Pact's provisions may appear to signify a 
fundamental change in the traditional legal institution of neutrality. In 
fact, however, the significance of this change ought not to be overestimated. 
In the absence of any further obligation to discriminate against an aggressor 
those states not immediately involved in war will continue to invoke the 
traditional law of neutrality — with its principle of strict impartiality — ■ 
whenever they consider such action to be to their interests. The practice 
of states in the period that has elapsed since the conclusion of the General 
Treaty For The Renunciation of War furnishes impressive evidence in sup- 
port of this observation. 10 

There is a further, and possibly more serious, objection to be considered 
in evaluating the contention that the General Treaty For The Renunciation 
of War has effected a basic change in the traditional institution of neutral- 
ity. The Pact of Paris provides for no objective authority competent to 
determine when a state has resorted to war in violation of the Pact's pro- 
visions. In the absence of a procedure making possible an authoritative 
and binding judgment that in a given instance a state has unlawfully re- 
sorted to war, each state must reach such determination independently. 

and 132.-7, for documents relating to the destroyer-base agreement and for text of the Lend- 
Lease Act. 

In an address of March xrj, 1941, before the Inter-American Bar Association the Attorney- 
General of the United States declared : 

"The Kellogg-Briand Pact of 192.8, in which Germany, Italy, and Japan covenanted with us, 
as well as with other nations, to renounce war as an instrument of policy, made definite the 
outlawry of war and of necessity altered the dependent concept of neutral obligations . . . 
The Treaty for the Renunciation of War and the Argentine Anti-War Treaty deprived their 
signatories of the right of war as an instrument of national policy or aggression and rendered 
unlawful wars undertaken in violation of their provisions. In consequence, these treaties 
destroyed the historical and juridical foundations of the doctrine of neutrality conceived as an 
attitude of absolute impartiality in relation to aggressive wars. It did not impose upon the 
signatories the duty of discriminating against an aggressor, but it conferred upon them the right 
to act in that manner." A. J. I. L., 35 (1941), pp. 353-4. 

10 In the period up to and including the second World War, the United States provided the 
only significant example of a neutral state attempting to justify discriminatory behavior to- 
ward a belligerent by reference to the Kellogg-Briand Pact. It is necessary to add, however, 
that the behavior of the United States in the period prior to 1940 would appear to deprive 
even this one example of much of its significance. In the neutrality legislation enacted during 
the period from 1934 through 1939 no recognition was given to the possible effects the Pact 
of Paris might have upon the rights of non-participants in an unlawful war. Instead, it was 
assumed that whatever the origin of the war the duties of non-participants under the traditional 
law — and particularly the duty to refrain from discriminatory behavior — continued unimpaired. 
It is also noteworthy that the resort to the Kellogg-Briand Pact as a justification for dis- 
criminatory measures against Germany never formed more than a partial justification for 
American policy. In large measure, this discriminatory behavior continued to receive justi- 
fication by reference to arguments whose relevance could be assessed only in terms of the 
traditional law (see p. 198^)). 

169 



The possibility — or, perhaps more accurately, the probability — must be 
envisaged that third states will differ in their respective judgments regard- 
ing the origin of a war. General international law may be interpreted as 
presently permitting states to discriminate against an aggressor, but it can- 
not prevent third states from reaching mutually contradictory decisions 
as to the identity of the aggressor. 11 The result must be wars in which 
both sides are made the objects of discriminatory measures. It was pre- 
cisely this contingency — a product of the decentralization normally char- 
acteristic of the international legal order — that served historically as a par- 
tial justification, at least, for the traditional legal institution of neutrality 
with its principle of strict impartiality. 12 

Admittedly, this same argument may be used to call into question the 
practical utility of the change that has occurred in the legal position of war 
itself under general international law. For the mutually contradictory de- 



11 In this respect the Pact of Paris clearly did not improve upon the situation that has always 
characterized the application of customary international law. If anything, it provided a re- 
markable example of the futility of an international instrument which attempts to render 
the resort to war illegal except when taken as a measure of self-defense against an illegal resort 
to war, but takes no steps toward the solution of those problems which otherwise make the 
value of such attempts extremely limited. All the important weaknesses of international 
law are given express recognition in the Pact's provisions. Yet it attempted the solution of 
a problem the existence of which was largely the result of those very weaknesses it expressly 
recognized. Under the Pact each contracting party has the right to determine — for itself 
only — whether a resort to war constitutes a violation of the Treaty or a measure of self-defense 
permitted by the Treaty. It has been asserted that "elementary principles of interpretation 
preclude a construction which gives to a state resorting to an alleged war in self-defense the 
right of ultimate determination, with a legally conclusive effect, of the legality of such action." 
Oppenheim-Lauterpacht, op. cit., pp. 187-8. This is correct, if by "the right of ultimate deter- 
mination, with a legally conclusive effect" is meant the right to decide the legality of an action 
in a manner that other parties are bound to accept. It follows, then, that according to the 
Kellogg-Briand Pact, and according to general international law, the final — and authoritative — 
decision as to the character of a war allegedly waged in self-defense must depend upon an express 
agreement of the parties involved to submit disputed instances of self-defense to the decision 
of an organ endowed with the requisite competence. In particular, decisions made unilaterally 
by the victorious states following the conclusion of a war cannot be deemed to fulfill this 
requirement. And it is hardly necessary to point out that even if such authoritative decisions 
are finally rendered they do not resolve the difficulties of non-participants during the actual 
course of the war. 

12 Distinguish, however, between the foregoing criticism of the Pact of Paris and the 
opinion that since "each nation was to be the exclusive and unreviewable judge of the question 
whether its war was one of self-defense . . . the Kellogg Pact has no legal force whatever ..." 
Edwin Borchard, "War, Neutrality and Non-Belligerency," A. J. I. L., 35 (1941), p. 6ix. It 
is one thing to assert that the utility of an international treaty prohibiting — in principle — the 
resort to war will be severely limited if it leaves the interpretation and application of that 
instrument to each of the contracting parties, and quite another thing to state that this con- 
dition of decentralization serves to deprive the treaty of "legal force." The latter assertion is 
surely unwarranted, unless it be contended that most of the rules of international law — whose 
interpretation and application is normally a product of the same condition of complete de- 
centralization — have no "legal force." 

170 



cisions non-participants must be expected to reach concerning the origin of 
war will necessarily lead to an equal lack of uniformity in the actual par- 
ticipation of third states in hostilities. Under these circumstances the 
former liberty to resort to war is likely to remain — in practice if not in 
law — the prerogative of each state. At the same time, however, the for- 
mer duty of non-participants to observe the rules laid down by the tradi- 
tional law of neutrality presumably would be abandoned. This rather 
paradoxical result can hardly be considered an improvement over the tra- 
ditional law. Nevertheless, it may be said to follow from the attempt 
merely to place restrictions upon the liberty of states to resort to war while 
failing to provide a procedure whereby an authoritative determination can 
be made that in a given instance a state has resorted to war unlawfully. 
And it is for this reason that although the traditional law of neutrality 
grew out of, and received its principal justification from, the unlimited 
liberty of states to resort to war, a change in the legal position of war does 
not necessarily imply the desirability of modifying — let alone abolishing — 
the duties imposed and the rights conferred upon non-participants by this 
traditional law. 13 

C. NEUTRALITY UNDER THE CHARTER OF THE UNITED 

NATIONS 

Under the collective security system established by the Charter of the 
United Nations, Member states no longer possess, in principle, the freedom 
either to refrain from actively participating in a war that has taken on the 
character of a United Nations enforcement action, or — should they not be 
called upon by the Security Council to take military measures — to observe 
the duty of impartiality as laid down by the traditional law. 14 This gen- 
eral observation must presuppose, of course, that the Security Council is 
able to exercise effectively those functions conferred upon it by the Charter. 
Even so, there is the possibility of distinguishing between several kinds of 
situations. 

According to Article 39 of the Charter the Security Council shall decide, 
in the event it determines the existence of a threat to or breach of the peace, 
what measures shall be taken in order to maintain or restore international 



13 And it is presumably for the same reason that the Harvard Draft Convention On Rights and 
Duties of States in Case of Aggression (pp. cit., pp. 8zi ff), while permitting third states to take 
discriminatory measures against an aggressor, nevertheless limited the applicability of the 
Draft Convention to "cases where a resort to armed force has been in violation of a legal obliga- 
tion not to resort to such means and where such violation has been duly determined by a procedure 
to which the law-breaking State has previously agreed" (p. 815), [italics added]. 

14 A substantial portion of the discussion immediately to follow in the text represents a 
reformulation of problems earlier examined in Chapter I (see pp. 13-10). Perhaps the best 
analysis to date of the possible effect that the United Nations Charter may have upon the 
traditional institution of neutrality is J. F. Lalive, "International Organization and Neu- 
trality," B. Y. I. L., Z4 (1947), p. 80. 

171 



peace and security. These measures may consist of acts not involving 
(Article 41) or involving (Article 42.) the use of armed force. In this con- 
nection, it is important to observe that the unlawful resort to armed force 
by a Member of the United Nations neither automatically involves other 
Member states in war with the delinquent state nor places upon Member 
states even the obligation to resort to war. The obligation to resort to 
measures involving the use of armed force follows only upon the requisite 
decision by the Security Council, and actual involvement in hostilities 
occurs only when the Member state has carried out the obligation imposed 
upon it by the Security Council. 15 

It is altogether possible, therefore, that in the event of an enforcement 
action ordered by the Security Council certain Member states may not be 
required to participate with their armed forces. 16 Article 48 of the Charter 
contemplates this possibility by providing that the "action required to 
carry out the decisions of the Security Council . . . shall be taken by all 
the Members of the United Nations or by some of them, as the Security 
Council may determine." Hence, the opinion that the effective operation by 
the Security Council of the powers granted it under the Charter precludes 
the possibility that Member states may retain a status of neutrality in a war 

15 Under the collective security system established by the Covenant of the League of Nations 
each Member state retained the right to determine for itself whether another Member state 
had resorted to war in violation of its obligations. The League Council could give its opinion 
as to whether a breach of the Covenant had occurred, but the Council's opinion was not binding 
upon Members. According to Article 16, paragraph 1, of the Covenant it was provided that: 
"Should any Member of the League resort to war in disregard of its covenants under Articles 
ix, 13 or 15, it shall ipso facto be deemed to have committed an act of war against all other 
Members of the League, which hereby undertake immediately to subject it to the severance 
of all trade or financial relations, the prohibition of all intercourse between their nationals 
and the nationals of the covenant-breaking State, and the prevention of all financial, com- 
mercial or personal intercourse between the nationals of the covenant-breaking State and the 
nationals of any other State, whether a Member of the League or not." This provision has 
been correctly described as a legal fiction "since the Members against which the delinquent 
Member did not resort to war are actually not in a state of war and are not obliged to resort to 
war against the delinquent state." Hans Kelsen, Principles of International Law (1952.), p. 86. 
So long as each Member of the League did not itself decide that another Member had unlawfully 
resorted to war, the obligations imposed by Article 16 did not become operative. Even after 
having so decided there was no obligation to resort to war against the delinquent, although 
there was an obligation to take certain measures of discrimination, largely economic in charac- 
ter (and, according to paragraph 3 of Article 16, the further obligation to "take the necessary 
steps to afford passage through their territory to the forces of any of the Members of the League 
which are cooperating to protect the Covenants of the League.") 

16 It is also relevant to recall that the obligation of Member states to take measures of 
armed force provided for in Article 42. is probably dependent upon the conclusion of the special 
agreements provided for in Article 43. These agreements, to be concluded between the Security 
Council and Member states, are to regulate the conditions under which the armed forces and 
facilities of the Member states will be made available to the Council. However, in the absence 
of such agreements it is doubtful that the Security Council is competent to obligate Member 
states to take military measures against a state considered by the Council to have committed 
a threat to or breach of the peace. 

172 



that has the character of a United Nations enforcement action is correct 
only if neutrality is identified with the duties imposed upon non-participants 
by the traditional law, and particularly with the duty to observe a strict 
impartiality. 

It is considered preferable, however, to identify neutrality simply with 
the status of non-participation in hostilities, and not with the specific con- 
sequences that are attached to the status of non-participation according to 
the traditional law. 17 If this concept of neutrality is accepted then it is 
clear that in an enforcement action taken by the United Nations that has 
the characteristics of war some Member states may remain neutral, in the 
sense that they are not required to participate in the hostilities. How- 
ever, the consequences attached to such non-participation are not the 
consequences attached to the status of non-participation by the traditional 
law, for Member states are obligated by the Charter to assist the Organiza- 
tion by measures not involving the use of armed force and to refrain from 
rendering any assistance to state(s) against which enforcement action is 
taken. 18 



17 See pp. 196-8. Though not accepted by perhaps the majority of writers, this identification 
of neutrality with non-participation in war need not pose any difficulty here. Whether accepted 
or not there is at least a clear distinction to be drawn between a status of non-participation in 
hostilities which does entail the duties imposed by the traditional law (particularly the duty 
to observe a strict impartiality toward the belligerents), and a status of non-participation 
which may impose a duty as well as confer a right upon a state to discriminate against the side 
that has unlawfully resorted to war. In the latter case the discriminatory measures taken by 
non-participants have their basis in norms constituting a general system of collective security. 
In the former case departure from the duties imposed upon non-participants by the traditional 
law has no apparent justification and gives rise to a belligerent right of reprisal. 

18 The discussion in the text necessarily assumes that in an enforcement action ordered by the 
Security Council Member states are obligated, even without specific direction by the Council, 
to depart from a position of strict impartiality and to discriminate against the delinquent state. 
In other terms, this assumption interprets Article z, paragraph 5, as being automatic in its 
application to Member states. It is possible, though, to interpret Article z, paragraph 5, as 
obligating states to take measures of discrimination only when so directed by the Security 
Council (this interpretation draws added weight if Article z, paragraph 5, is considered to- 
gether with Article 48). In the absence of such direction a Member state could then remain 
neutral and observe a strict impartiality. But there is little doubt that this latter interpretation 
is contrary to the principles upon which the collective security system established by the 
Charter is based. (Also see Law of Naval Warfare, Article Z32..) At the same time, it would 
appear that in the light of recent developments a state may be accepted as a Member even 
though it is committed to a status of permanent neutrality, a status entailing not only the obliga- 
tion to refrain from resorting to war against any state — save in self defense — but also the obliga- 
tion to observe all the duties imposed upon non-participants by the traditional law. Thus in 
1955 Austria was admitted as a Member state despite its announced intention to adopt a policy 
of permanent neutrality, and its request to all states to recognize this status. To date, Austria's 
request has been accorded recognition by a substantial number of states, including the permanent 
Members of the Security Council. On first consideration, the status of permanent neutrality 
appears clearly incompatible with membership in the United Nations (an opinion expressed 
by the framers of the Charter). Nevertheless, Professor Verdross, writing before Austria's 
admission into the United Nations, has declared that the Security Council "can decide freely 

173 



The position of a state that refrains from active participation in hostili- 
ties, but nevertheless resorts — in accordance with obligations undertaken 
within a system of collective security — to discriminatory measures against 
one side in a war, has frequently been termed "qualified" or "differential " 
neutrality. 19 During the League of Nations period a good deal of specula- 
tion was devoted to the possibility of states occupying a position of quali- 
fied neutrality, and was occasioned by the obligations imposed upon Mem- 
ber states by the Covenant of the League of Nations to take measures of 
discrimination — primarily economic in character — against another Member 
state that had unlawfully resorted to war. A similar problem arises with 

which Members it wants to execute sanctions and compulsory measures and to what extent" 
The Security Council may therefore permanently relieve individual Members of these obligations 
by a resolution embodying a principle. Only the Security Council would be able to alter or 
annul such a resolution . . ." "Austria's Permanent Neutrality and the United Nations Organ- 
ization," A. J. I. L., 50 (1956), p. 66. In dealing with the same issue Professor Kunz has more 
recently stated that even if the Security Council does not adopt such a resolution "it seems that 
Austria's permanent neutrality is not endangered by its membership . . . For Austria's per- 
manent neutrality has come into existence in international law by recognition on the part of 
the permanent members of the Security Council and many other states; recognition binds the 
recognizing states to respect permanent neutrality; this respect for permanent neutrality there- 
fore obliges the members of the Security Council not to call on a permanently neutral state for 
participation in economic and military sanctions." "Austria's Permanent Neutrality," 
A. J. 1. L., 50 (1956), p. 414. It is clear, however, that the situation of Austria is exceptional, 
and does not detract from the statements made above concerning the obligation of other Member 
states to accord assistance to the Organization by virtue of Article 2., paragraph 5. Moreover, 
Austria's membership is not, as Kunz points out, "unconditional," since it does not entail all 
of the obligations normally imposed upon Members. 

19 The terminology employed by writers to describe the position of the discriminating non- 
participant is not always consistent, however, and this fact may account for some of the con- 
fusion that has accompanied discussions of "qualified" or "differential" neutrality. Some 
writers (e. g., Guggenheim, Traits de Droit International Public, Vol. II, pp. 496-500) use the 
term "qualified" neutrality to indicate the position of non-participants that assert a right 
(though not a duty) to assist the victim of an unlawful resort to war, primarily as a consequence 
of the Kellogg-Briand Pact, and thereby distinguish between the position of "qualified" neu- 
trals and the position of non-participants under the Charter of the United Nations. Other 
writers (e. g., Verdross, Vd'lkerrecht, pp. 42.4, 515-6) appear to use the terms "qualified" or 
" differential" neutrality to describe the position of non-participants that follow — for any 
reason — a policy of discrimination. In this sense, "differential" neutrality may refer to the 
position of Member states of the United Nations as well as to non-participants that remain 
bound by the rules of the traditional law. — It would appear desirable, however, to use the terms 
"qualified" or "differential" neutrality either to describe the position of states that have 
both a right and a duty to discriminate against an aggressor (e. g., the position of states Members 
of the United Nations) or to describe the position of non-participants having only a right of 
discriminating against a state unlawfully resorting to war (e. g., by virtue of the Kellogg- 
Briand Pact). In theory at least, it is true that there is a significant difference between these 
two types of "qualified" or "differential" neutrality. But if the duty to discriminate against 
an aggressor cannot be effectively implemented the difference between these two types is likely 
to prove — in practice — very small. On the other hand, the term "non-belligerent" may be 
reserved to describe the position of a non-participant that departs from the duties imposed 
upon the latter by the traditional law without having a right to do so (see pp. 191-3, 198-9). 

174 






respect to the position of Member states in an enforcement action under- 
taken by the United Nations. 

To the extent that the idea of a qualified or differential neutrality has 
been based upon the contention that the impartiality required of non- 
participants by the traditional law refers only to military matters (thus 
permitting discriminatory acts with respect to non-military matters), it 
must be regarded as unfounded. In fact, it was hardly possible to reconcile 
the obligations assumed by Member states under the Covenant with the 
obligations imposed by the traditional law. 20 Member states could refrain 
from participating in a war against another Member state that had unlaw- 
fully resorted to war. They could not — consistently with their obligations 
under the Covenent — observe a strict impartiality. But under the Covenant 
all Member states expressly assumed the obligation to permit measures of 
discrimination to be taken against them in the event they resorted to war 
in violation of their obligations; for in this event they forfeited the rights 
formerly enjoyed by belligerents with respect to non-participants, though 
retaining all of the belligerent's duties. The same reasoning must also 
apply to United Nations enforcement actions. Of course, the real difficulty 
here is not primarily legal but political in character. Will the aggressor 
tolerate discriminatory measures on the part of non-participants? Experi- 
ence to date has not yet furnished sufficient indication as to how meaningful, 
in practice, the position of a discriminating non-participant may be. If 
anything, it seems probable that this position — if seriously pursued — 
would necessarily prove difficult to maintain. 21 

The preceding remarks have dealt only with the effect the Charter of the 
United Nations may have upon neutrality so far as Member states are 
concerned, presupposing, of course, the effective operation by the Security 

20 This was illustrated in the case of Switzerland. In admitting Switzerland to the League 
the Council of the League declared that Switzerland had no obligation to undertake military- 
measures against a violator or to permit the passage of troops through Swiss territory. Never- 
theless, the obligation to take economic and financial sanctions against a Member state un- 
lawfully resorting to war was retained. In order to reconcile this latter obligation with her 
traditional status of permanent neutrality the Swiss Government contended for some time — 
as did a number of Swiss writers — that a strict neutrality was compatible with an "economic 
partiality," that the impartiality demanded of neutrals by the traditional law referred only to 
the military, not to the economic sphere. This opinion was quickly abandoned, however, during 
the Italo-Ethiopian War, when economic sanctions were taken against Italy by League members. 
Shortly thereafter, in 1938, Switzerland declared it would no longer consider itself bound by 
the obligation to participate in sanctions of an economic character, thereby abandoning a 
position of "qualified" or "differential" neutrality. 

21 In the Italo-Ethiopian War of 1935-36, a limited application of the so-called "differential" 
neutrality provided for in Article 16 of the Covenant was attempted. Several Members applied 
discriminatory measures of an economic character against Italy, while maintaining that Italy 
should observe those duties toward the discriminating states imposed upon belligerents by 
the traditional law. But this case can hardly be considered as decisive in illustrating the 
political feasibility of a "qualified" or "differential" neutrality. By 1938 it was generally 
recognized that Article 16 was no longer obligatory for Member states of the League. 

175 



Council of the powers conferred upon it by the Charter. A further problem 
relates to the effect the Charter may have upon neutrality as far as non- 
Member states are concerned. The answer to this problem must depend 
largely upon whether or not the law of the United Nations may be con- 
sidered as constituting general international law. Despite the claim in 
Article 2., paragraph 6, it is doubtful that the Charter can be considered as 
constituting general international law. 22 Accordingly, it is also doubtful 
that the Security Council possesses the competence to require that non- 
Member states, in a United Nations enforcement action, depart from a 
position of strict impartiality. 23 



22 Article z, paragraph 6 reads: "The Organization shall ensure that states which are not 
Members of the United Nations act in accordance with these Principles so far as may be necessary 
for the maintenance of international peace and security." Among writers, the majority 
seem to remain quite skeptical of the validity of Article z, paragraph 6, so far as non-Members 
are concerned. Thus Lalive (op. cit., p. 85) writes that there is "room for doubt whether the 
Charter can lawfully be invoked against a non-Member state," and Kelsen (The Law of the 
United Nations, p. no) states that "from the point of view of existing international law, the 
attempt of the Charter to apply to states which are not contracting parties to it must be charac- 
terized as revolutionary." It has even been pointed out that it is not necessary to interpret 
Article z, paragraph 6, as imposing obligations upon non-Members but only upon Members. 
"The Charter, in Article z (6), imposes upon the United Nations the obligation to ensure that 
non-Members act in accordance with its principles as far as may be necessary for the maintenance 
of international peace and security. Non-Members are not bound by this provision and they 
may choose to react accordingly. But the fact makes no difference to the obligations of the 
Members ... in all cases in which the Security Council has taken affirmative action under 
Articles 39, 41 and 4Z." Oppenheim-Lauterpacht, op. cit., p. 65Z. 

23 Within the United Nations itself the problem of the status of non-Members during an enforce- 
ment action was discussed in connection with the Draft Declaration on the Rights and Duties 
of States, prepared by the International Law Commission in conformity with Resolution 178 
(II) of the General Assembly, November zi, 1947 (U. N. General Assembly, Official Records, 
4th Sess. Supp. 10 (Doc. A/19Z5).) 

Articles 9, 10 and iz of the Draft Declaration state: "Article 9. Every state has the duty 
to refrain from resorting to war as an instrument of national policy, and to refrain from the 
threat or use of force against the territorial integrity or political independence of another state, 
or in any other manner inconsistent with international law and order. 

"Article 10. Every state has the duty to refrain from giving assistance to any state which 
is acting in violation of Article 9, or against which the United Nations is taking preventive or 
enforcement action. 

"Article iz. Every state has the right of individual or collective self-defense against armed 
attack." 

The Draft Declaration does not itself constitute positive international law, and as an attempt 
even to formulate existing general international law it has been subject to much criticism. 
Even so, Article 10 of the Draft Declaration clearly does not attempt to endorse the claim 
made by Article z, paragraph 6, of the Charter. "Every State," which includes non-Mem- 
ber states, is not under the obligation to discriminate against any state made the object of 
United Nations enforcement action, but is obligated only to refrain from giving assistance to 
states made the object of such action. To this extent the obligation laid down in Article 10 
of the Draft upon non-Member states is no different from the obligation they would otherwise 
have according to the traditional law, requiring as it does that non-participants in a war refrain 
from discriminatory measures and observe an attitude of impartiality toward the belligerents. 

176 



The problem relating to the Charter's effect upon the status of non- 
Members in a United Nations enforcement action is likely to prove relatively 
unimportant in practice, however. Should the Security Council be able 
effectively to exercise those powers conferred upon it by the Charter non- 
Member states would, as one writer has observed, "be politically alive to 
the possible consequence of action in defiance of the United Nations." 24 
It is the unlikelihood of such effective exercise of power by the Security 
Council that renders continued speculation over this problem of distinctly 
limited value. 

More useful, therefore, is a consideration of the far more probable situa- 
tion in which the Security Council will be unable either to order enforce- 
ment measures against a state that has unlawfully resorted to the use of 
armed force or even to determine the existence of a breach of the peace — ■ 
as it was able to do at the time of the outbreak of hostilities in Korea. 25 In 
the event of Security Council inaction the position of Member states not 
immediately involved in hostilities will be substantially the same as the 
position of third states — not immediately involved in war — under general 
international law. Neither Article 51 of the Charter nor the General As- 
sembly's resolution "Uniting for Peace" provide alternative methods 
whereby an authoritative and binding collective determination can be 
reached that a state has unlawfully resorted to the use of armed force. 26 It 

24 Philip C. Jessup, A Modern Law of Nations, p. 168. The above observation — to be sure — 
does not dispose of the strictly legal considerations. 

25 See pp. 16-8, where it has already been observed that the character of these Security 
Council resolutions renders doubtful the interpretation that the Korean action was a "United 
Nations' action" in the strict sense of that term. It is still more doubtful that Member 
states were under the obligation, imposed by Article z, paragraph 5, to give the United Nations 
"every assistance in any action" the Organization takes in accordance with the Charter. For 
these reasons the contention that a strict impartiality in the Korean Conflict was legally ex- 
cluded for Member states appears unacceptable. At the same time, the particular circumstances 
attending the Korean conflict, and especially the circumstance that the Security Council was 
able to determine the existence of a breach of the peace, does allow the interpretation that 
Member states were obligated to refrain from giving any assistance to the North Korean forces 
or to states acting in support of these forces. 

In practice, questions concerning neutral-belligerent relations were never put to a real test 
in the Korean conflict, due to the geographical location as well as to the peculiar nature of the 
hostilities. But several Member states of the United Nations did maintain a position practi- 
cally indistinguishable from that of non-participants under the traditional law. For a review 
of the Korean conflict and neutrality, see H. J. Taubenfeld, "International Actions and Neu- 
trality," A. J. I. L., 47 (1953), pp. 390-6. 

26 See pp. 18-zo. In the first Report (195 1) of the Collective Measures Committee (U. N. Doc. 
A/1891), established pursuant to the "Uniting For Peace" resolution, considerable emphasis 
was placed upon the desirability of obtaining universal support for the collective measures 
recommended in accordance with this Resolution. Thus one of the Reports "guiding principles 
of general application" was that: "All States should support the United Nations when it 
undertakes collective measures and participate to the fullest extent possible in carrying them 
out. ..." Such recommendations as may be made to states, both Members and non-Members, 
in accordance with the "Uniting For Peace" resolution, cannot serve to create obligations, 
however. 

177 



is equally clear that apart from the powers granted the Security Council 
under Chapter VII, the collective security system established by the Charter 
provides no alternative method for obligating Member states either to take 
measures involving the use of armed force or to take measures of discrimina- 
tion not involving the use of armed force against a state that is regarded as 
having violated its obligations under the Charter by resorting to war. 
Hence, in the event that the Security Council is unable to fulfill its func- 
tions Member states may, in the event of war, abstain from all participation 
in hostilities and observe a strict impartiality. 27 

It is quite true that under Article 51 the Charter does confer upon Mem- 
bers the right to assist any Member state that has been made the victim of 
an "armed attack," and this right is terminated only when the Security 
Council has taken "measures necessary to maintain international peace and 
security." Nor is there any reason for interpreting Article 51 as permit- 
ting only such assistance on behalf of the victim of an armed attack as 
involves the use of armed force. The "collective self-defense" allowed 
under Article 51 also permits measures of discrimination against an alleged 
aggressor that do not necessarily involve the discriminating states' active 
participation in hostilities. 

Thus, according to the Charter, the right to participate in the collective 
defense of a state made the object of an unlawful resort to war may be 
considered to include the right to discriminate against the aggressor by 
measures falling short of active participation in hostilities. But the 
difficulties attending the exercise of this right to discriminate against an 
alleged aggressor are as readily apparent in relation to the Charter as they 



27 Nor can there be much doubt that — events permitting — a substantial number of Membe 
states would do just this. There is, in fact, little point in continuing to place undue emphasi s 
upon the possible effects the collective security system established by the Charter may have upon 
neutrality. For that system has never functioned as originally intended, and it is at least 
highly unlikely that it will do so in the foreseeable future. It is almost equally unlikely that 
the modest experiment in "collective security" effected during the Korean hostilities will be 
repeated, dependent as it would have to be upon the same fortuitous circumstances which 
permitted the Security Council to take in June and July of 1950 a limited form of action. And 
even during the Korean conflict not only did a number of Member states consider themselves to 
occupy a position of "neutrality" in relation to the hostilities, but the armistice terminating 
the hostilities provided for a "commission of neutrals" to insure its observance (though, 
ironically, four of the five states composing this "commission of neutrals" were Member states 
of the United Nations). It is true that no state issued a formal declaration of neutrality during 
the Korean conflict or actually invoked the traditional law of neutrality. It is also true that 
the accuracy of the term "neutral" with respect to the states policing the Korean armistice 
may be easily challenged from a technical point of view. But it would be quite unwarranted 
to dismiss the overall significance of these, and other, recent developments, which indicate 
that neutrality — even the "old-style neutrality" — may have to be disinterred once again by 
those who had buried it in the hope that the principle of collective security had finally made 
this traditional institution obsolescent. Certainly, the framers of the 1949 Geneva Con- 
ventions on the Treatment of the Victims of War did not share this view, for these Conventions 
assign important functions to neutral states. 

178 



are when considered in relation to the General Treaty For the Renunciation 
of War. It may be assumed that under Article 5 1 of the Charter states will 
reach the same mutually contradictory decisions concerning the origin of 
a war with the result that both sides to a conflict will be made the objects 
of discriminatory measures. 28 

This undesirable situation will not be relieved by the transformation of 
the right of collective defense, granted under Article 51 of the Charter, 
into a duty. The conclusion of agreements implementing the right of 
collective defense may indeed severely limit the possibility of states retain- 
ing the right to refrain from participating in a war, or, if allowed to remain 
in a non-participant status, to observe an attitude of impartiality. 29 It 

28 More than one writer has accorded clear recognition to the undesirable consequences to 
which this situation would probably lead. Thus, Professor Jessup (o-p. cit., p. Z05) in considering 
the possibility of an outbreak of war unaccompanied by the binding decision of a competent 
"international authority" (in this case the United Nations Security Council) declares: 

"If the legal position of non-participants in the conflict is to be regulated by some inter- 
national agreement short of a return to the old status of war and neutrality, it would be dis- 
astrous to agree that every state may decide for itself which of the two contestants is in the 
right and may govern its conduct according to its own decision, even if it were agreed that they 
would not actually support one or the other side by force. . . . There is no alternative except 
to extend throughout the duration of the conflict the system of impartial blockade against 
both parties to the fighting." 

The essence of this proposal is a mixture of both old and new. States are generally forbidden 
to resort to war. But if war should break out — and be unaccompanied by the binding decision 
of a competent "international authority" — third states are forbidden to participate, either for 
reasons formerly admitted by the traditional law or for reason of collective defense on behalf 
of the alleged victim. Nor are non-participants to be allowed to discriminate against an alleged 
aggressor. Instead, the position of third states is to resemble the position of non-participants 
under the traditional law, with the important exception that private neutral trade with the 
belligerents — allowed by the traditional law — is to be forbidden. The proposal recalls some- 
what similar suggestions made in the period preceding World War II, to the effect that an 
enforced isolation of the belligerents would reduce the danger of conflict spreading and induce 
the belligerents to cease hostilities. Apart from its possible merits, and they are not incon- 
siderable, it should be observed that this proposal is at variance both with the General Treaty 
For the Renunciation of War and with Article 5 1 of the United Nations Charter. 

29 Here again, however, the compatibility of neutrality and collective defense agreements 
will depend, in practice, not only upon the nature of the obligations incurred but also upon 
the procedure that is provided for determining the existence of those circumstances (i. e., an 
"armed attack") serving to bring the obligations in question into operation. Thus, Article 5 
of the North Atlantic Treaty, concluded at Washington, April 4, 1949, reads: 

"The Parties agree that an armed attack against one or more of them in Europe or North 
America shall be considered an attack against them all; and consequently they agree that, if 
such an armed attack occurs, each of them, in exercise of the right of individual or collective 
self-defense recognized by Article 51 of the Charter of the United Nations, will assist the Party 
or Parties so attacked by taking forthwith, individually and in concert with other Parties, 
such action as it deems necessary, including the use of armed force, to restore and maintain the 
security of the North Atlantic area. Any such armed attack and all measures taken as a result 
thereof shall immediately be reported to the Security Council. Such measures shall be terminated 
when the Security Council has taken the measures necessary to restore and maintain inter- 
national peace and security." 

399334—57 13 179 



may also be that these agreements confer upon a central organ competence 
to determine when the duty of collective defense must be fulfilled, and even 
the extent of this duty. But such decisions are binding only upon the 
contracting parties to the agreement. It must be expected, therefore, that 
different decisions will be reached by those states parties to different — and, 
presumably, opposed — collective defense agreements. In this situation 
the resort by non-participants to measures of discrimination may only 
serve to provoke retaliatory measures on the part of the state against which 
they are taken. Nor will it normally prove possible during the course of 
a war to determine that acts of retaliation on the part of the alleged ag- 
gressor are without legal justification. 



180 






VII. NEUTRALITY AND THE TWO 
WORLD WARS 

In the preceding chapter an attempt has been made to inquire into the 
possible effects upon the traditional institution of neutrality resulting from 
the changed position of war in international law. In general, it may be 
concluded that these effects, though certainly not without significance, have 
been limited in nature. Undoubtedly there is, in principle, a basic antago- 
nism between the assumptions upon which a system of collective security 
must rest and neutrality. Nevertheless, the actual effects that a system of 
collective security may have upon neutrality — particularly in its tradi- 
tional form — can only be judged by the extent of the obligations imposed 
upon member states, by the existence of a centralized — and operative — pro- 
cedure for determining when these obligations must be fulfilled, and by the 
effectiveness of the machinery provided for ensuring that they are so ful- 
filled. It should be apparent that when judged by these criteria neutrality 
can hardly be regarded as constituting at present only a matter of historical 
interest. 

In considering the present status of neutrality, it is of considerable im- 
portance, therefore, to distinguish between the effects upon neutrality re- 
sulting from the transformation in the legal position of war and those 
effects brought about by the two World Wars. Not infrequently writers 
fail to make this distinction clear, and — even worse — impute to the former 
what is clearly the consequence of the latter. This failure can only serve 
to breed confusion. In fact, however, the present decline of neutrality is 
the consequence primarily of the two World Wars and of the circumstances 
that have attended these conflicts. 

A. BELLIGERENT ENCROACHMENT UPON TRADITIONAL 

NEUTRAL RIGHTS 

It is fundamental that an equality — or an approximate equality — of neu- 
tral and belligerent rights must depend, in the first place, upon an equality 
of power. Where neutrals do not possess an equality of power with bellig- 
erents their interests, and hence their legal rights, will suffer accordingly. 
This has always been the case, even in the nineteenth century. The lesson 
taught by the Napoleonic Wars, which opened the nineteenth century, 
was — in this respect — quite clear, and the strong parallel between the prac- 

181 



tices of belligerents during the earlier wars and belligerent measures taken 
in World War I has not escaped the attention of writers. 1 

Historically, the major disputes between neutrals and belligerents have 
concerned the scope of the repressive measures permitted to belligerents 
against the trade of neutral subjects. It has long been customary to charac- 
terize the problems arising with respect to neutral commerce in terms of two 
conflicting rights* the right of the neutral state to insist upon continued 
freedom of commerce for its subjects despite the existence of war and the 
right of the belligerent to prevent neutral subjects from affording assistance 
to the military effort of an enemy. More accurate, perhaps, is the charac- 
terization of these problems in terms of conflicting interests rather than in 
terms of conflicting rights. Whereas the neutral's interest has been to 
suffer the least amount of belligerent interference in the trading activities 
of its subjects, the belligerent's interest has been to prevent neutrals from 
compensating for an enemy's weakness at sea. The reconciliation of these 
clearly diverse interests has never proven easy and, as the preamble to the 
Declaration of Paris stated a century ago, "has long been the subject of 
deplorable disputes . . . giving rise to differences of opinion between 
neutrals and belligerents which may occasion serious difficulties and even 
conflicts. ..." The neutral claim — that hostilities should interfere as 
little as possible with neutral commerce — is not an unreasonable one. 
Still, the belligerent claim — that the neutral ought not to be allowed 
to compensate for an enemy's weakness — may be regarded as equally 
reasonable. 

These initial observations may serve as a warning against the many 
attempts to find in the "general principles" alleged to govern neutral- 
belligerent relations at sea self-evident and fixed criteria from which 
precise limits upon belligerent freedom to interfere with neutral trade can 
be deduced. In an earlier period the assumption was common that these 
general principles "of necessity" dictated a minimum of belligerent inter- 
ference with neutral trade. At present it is the contrary conviction that 
forms the basis of most inquiries into the issue of "neutral rights" at sea. 
Neither position appears well taken. It is quite true that the neutral state 
has the right to demand that no repressive measures be taken by a belligerent 
against legitimate neutral commerce with an enemy, and that this neutral 
right corresponds to a duty of absention on the part of the belligerent. 
But it is hardly possible to deduce from this general principle the character 
of the neutral intercourse that must be regarded as legitimate and against 
which repressive measures by belligerents are forbidden. On the contrary, 
experience has shown that the practices establishing the respective rights 
and duties of belligerents and neutrals are not dependent upon logical de- 

1 See, for example, Neutrality, Its History, Economics and Law (4 vols); Vol. II, The Napoleonic 
Period (1936), by W. Alison Phillips and Arthur H. Reede, Vol. IV, Today and Tomorrow (1936), 
by Philip C. Jessup, pp. 58-85. 

182 



ductions drawn from general principles but upon the character of* those 
concrete circumstances attending the conduct of warfare during a particular 
historical period. 

During most of the nineteenth century a rough balance was struck between 
the conflicting claims of neutrals and belligerents, a balance duly reflected 
in the traditional law of neutrality. If anything, the traditional law 
inclined slightly in favor of neutral interests, and in doing so recorded the 
experience of the century which was one of limited warfare. Thus one of 
the principal assumptions underlying the traditional law, as H. A. Smith 
has observed, "is that the greater part of the world is at peace, that war 
is a temporary and local disturbance of the general order, and that the 
chief function of law is to keep the war from spreading, and to minimize 
its impact upon the normal life of the world." 2 It need hardly be pointed 
out that this assumption did not correspond — even remotely — to the con- 
ditions under which the two World Wars were fought, and the decline in 
this century of the traditional institution of neutrality may be attributed, 
in the first place, to the fact that this system was designed principally to 
regulate the behavior of belligerents and non-participants in local wars, 
not in global conflicts. 

To the foregoing must be added the further consideration that the wars 
of the twentieth century have been conducted with an intensity unknown 
to the nineteenth century. It has become abundantly clear that if there is 
always a latent conflict between belligerent and neutral interests, even in a 
local war conducted with restraint and for limited purposes, the conflict 
between these interests in a major war that is total both in conduct and 
purpose becomes almost irreconcilable. On the one hand, a primary aim 
of the belligerents in recent warfare at sea has been the complete shutting 
off of enemy trade, the destruction or capture of all imports to and exports 
from enemy territory, without regard to whether this trade is carried in 
enemy or neutral bottoms. 3 On the other hand, the effect of the traditional 
law — if strictly adhered to — was to make it exceedingly difficult for the 
measures a belligerent could bring to bear at sea against an enemy's economy 
to play more than a limited role in the final decision of the war. 4 Given 



2 H. A. Smith, op. cip., p. 75. 

3 And also without regard to whether such imports to and exports from enemy territory are 
immediately destined to or originating from neutral territory (see pp. 184-6). 

4 This antagonism in modern war between the restraints the traditional law imposes upon 
belligerents with respect to neutral trade and the importance of cutting off the enemy's sources 
of materials for waging war cannot be emphasized too strongly. And it is probably true that 
belligerent encroachment upon traditional neutral rights at sea must be attributed as much 
to this circumstance as to the relative strength of belligerent and neutral states. Even when 
confronted with considerable neutral strength — as belligerents were so confronted at least in 
the initial stages of both World Wars — belligerents were nevertheless willing to risk neutral 
ill will, and even possible neutral intervention, in order to deny an enemy the means for con- 
ducting war. 

183 



the transcendent importance of the economic factor in modern, and total, 
war the outcome — a steady belligerent encroachment upon traditional 
neutral rights — was hardly unexpected. 5 

In large measure, however, the marked predominance of belligerent in- 
terests that has so clearly characterized hostilities at sea since 1914 is the 
result of developments against which neutral protests have been — from a 
strictly legal point of view — all too frequently devoid of solid foundation. 
The nineteenth century balance between neutral and belligerent was re- 
flected not only in law but also in the extra-legal restraints that had 
characterized belligerent behavior. Indeed, the importance of the re- 
straints hitherto accepted by belligerents, even though not demanded by 
law, can only be fully appreciated with the advantage of hindsight. Dur- 
ing the 1914 and 1939 wars many of the most effective measures taken by the 
Allied Powers against neutral trade consisted of so-called ' 'interferences by 
sovereign right." In theory, the essential purpose of the varied belligerent 
measures falling within this category was to cut off trade with the enemy 
by threatening to deprive neutral traders and shippers of certain advantages 
hitherto enjoyed if found — or suspected of — aiding the enemy's cause. In 
practice, these measures went far toward reducing neutral trade to a posi- 
tion of near subservience to belligerent controls. 6 

Despite strong neutral protests, there were no established rules expressly 
forbidding belligerents to subject neutral commerce to strict control through 
the threat of interference by sovereign right. 7 For the most part, it would 



5 Though, of course, this is not to justify such belligerent encroachment upon traditional 
neutral rights. But it does go far in accounting for the persistence and intensity of belligerent 
efforts to restrain neutral commerce with an enemy. Of this, the history of American neutrality 
during World War I must provide the classic example. 

6 The continuation or withdrawal of these advantages depended almost entirely upon the 
discretion of the belligerent, hence the characterization of these belligerent measures as "inter- 
ference by sovereign right." A survey of World War I practice in this respect has been made 
by Edgar Turlington (The World Wa Period (Vol. Ill, Neutrality, Its History, Economics and Law 
1936) pp. 67-99), w ^° observes that there was "no system of law which a neutral could invoke 
against the action of any or all of the belligerents in prohibiting the exportation of specified 
goods from their territory; in refusing bunker supplies or ship's stores to neutral vessels; in 
forbidding their nationals to have commercial or financial dealings with the enemy or with 
neutral nationals suspected of trading with the enemy; or in requisitioning, subject to com- 
pensation, ships within their ports. Against such action the neutrals had no defense except 
their economic and potential military strength" (p. 67). And Turlington has concluded that: 
"On the whole, it seems safe to say that belligerent interferences by sovereign right were far 
more prejudicial to the economic life of the neutrals in the World War than were all the other 
forms of belligerent interference" (p. 151). British practice in World War II, in which the 
experience of the previous conflict was utilized and developed still further, has been described 
in detail by W. N. Medlicott, Civil History of The Second World War: The Economic Blockade (195Z), 
Vol. I. For further remarks on World War II practice, see pp. z8o-z, 312.-5. 

7 It may be contended — and neutrals occasionally have so contended — that belligerents are 
prohibited from interfering with legitimate neutral intercourse with an enemy even though 
the forms such interference might take are not expressly forbidden by law. Obviously this 

184 



appear, neutral protests failed to acknowledge that a significant area of 
neutral-belligerent relations depended upon the character of hostilities and 
the restraints belligerents would feel compelled to accept, not as a matter of 
strict law but for reasons of expediency. And this implied, in turn, that 
belligerent interferences with neutral trade by sovereign right could be 
contested on the political and economic levels though only with difficulty 
on a legal basis. 

Admittedly quite different considerations were raised by belligerent 
measures that clearly could be interpreted as departures from the established 
law. Here, neutral protests against what were alleged to be belligerent 
violations of traditional neutral rights at sea required belligerent justifica- 
tion. In part, belligerents responded to neutral protests by maintaining 
that legally controverted measures taken against neutral trade merely 
represented a reasonable adaptation of the traditional law to the novel 
circumstances in which hostilities were being conducted. In part, bellig- 
erents sought to justify measures whose legality could not otherwise be 
seriously contended for by the claim that they formed legitimate measures 
of reprisal taken in response to the unlawful behavior of an enemy. 

The belligerent contention that novel circumstances may serve to justify 
novel belligerent measures no doubt suffered from the obvious criticism 
that may always be made of this plea. Neutrals had little trouble, there- 
fore, in pointing out to belligerents that once recognition is accorded to 
the plea of novel circumstances it may readily be used as an instrument for 
the subversion of all established law. Nor did the belligerents strengthen 
their position by claiming the right to invoke the doctrine of novel circum- 
stances in their own case, and — from the neutral's point of view — for their 
own interests, though invariably rejecting the same plea when invoked by 
an enemy. Thus the unreserved British condemnation of the contention 
that allegedly novel circumstances could ever serve to release the submarine 
from any of the traditionally accepted rules was seldom viewed as hindering 
support for the contention that changed conditions justified the diversion 
of neutral vessels into port for visit and search. 8 Admittedly, cogent 
considerations could be — and were — offered after 1914 in support of the 
practice of diversion. Yet there is little doubt that this practice was not 
permitted by the law as it stood at the outbreak of hostilities in 1914. 9 

argument is not a particularly strong one. When seriously pressed by neutrals it has only 
succeeded in raising the broad question of the nature of the trade that might yet be regarded as 
legitimate, given the conditions in which the two World Wars were fought. 

8 The controversy over diversion formed only one among many novel measures taken by 
Great Britain, largely under the plea of novel circumstances. In part, the entire structure of 
the British "long-distance" blockade of Germany rested upon the argument that changed 
conditions required — and justified — alteration of the traditional rules governing blockade 
(see pp. 305-14). 

8 For a discussion of diversion of neutral vessels for visit and search from the point of view 
of the present law, see pp. 338-43. 

185 



It may, of course, be contended that novel practices are justified — even 
though constituting departures from established rules — if such practices 
do not prove destructive of the basic purposes of the law, but merely seek 
to adapt the latter to changing conditions. This argument takes on added 
force when it is once recognized that although the conditions attending 
naval warfare do change — and did change during World War I 10 — states 
have nearly always shown a pronounced reluctance to amend the law 
through express agreement in order that the rules defining the character and 
scope of belligerent restraints upon neutral commerce will bear a reasonable 
relation to altered conditions. Change, if it is to come at all, must come 
through what will necessarily appear as departures from established law. 
These departures are to be condemned — so the argument runs — only if they 
strike at the basic purposes of the law, as did the resort to unrestricted 
submarine warfare against neutral shipping. On the other hand, depar- 
tures are not necessarily to be condemned if they conserve these basic pur- 
poses, as did the practice of requiring deviation for visit and search. 

Even if it is assumed that this argument is well founded it remains true 
that the standard for judging belligerent behavior is no longer rigidly 
restricted to the rules of the positive law. Instead, belligerent behavior 
is to be judged — at least in part — by the degree to which it conforms to 
the law's essential purposes (to the "spirit of the law"). Unfortunately, 
however, whereas it may prove possible to reach a reasonably clear state- 
ment of the former it has always been next to impossible to state the latter 
with any degree of clarity. The traditional law regulating neutral-bellig- 
erent relations at sea can probably be understood only as the product of 
conflicting interests, informed — at best — by the spirit of compromise. 
And even if it were the case that the traditional law reflected some measure 
of identity of purpose as between neutral and belligerent, this was largely 
dissipated once hostilities broke out in 1914. 11 



10 Though this view has not always been accepted by writers. In one of his best known 
essays, John Bassett Moore endeavored to dispel the "illusion of novelty" put forth by bellig- 
erents during the war of 1914-18. International Law and Some Current Illusions (1914), pp. 
1-39 (the essay is of the same title). A similar theme was taken up some years later by Profes- 
sor Jessup, and applied to belligerent attempts during World War I to justify encroachment 
upon neutral rights. Op. cit., pp. 59-85. Professor Jessup, in emphasizing the marked similar- 
ity between belligerent arguments in the Napoleonic Wars and in World War I, observed that 
the contention of "novel circumstances" has always formed the stock-in-trade of belligerents 
anxious to provide a justification for unlawful measures taken against neutral commerce. — 
No doubt it is true that belligerents are often tempted to use the plea of novel conditions in 
order to rid themselves of irksome restraints. But this does not prove that the plea is neces- 
sarily a belligerent hoax. The fact is that the conditions attending World War I did represent 
many elements of novelty when contrasted with the preceding wars of the nineteenth century. 

11 In reviewing the difficulties confronting Great Britain in 1939, of reconciling her plans 
for the conduct of "economic warfare" with the traditional law, W. N. Medlicott (pp. cit., 
pp. 4-5) has declared that "legal definition lagged behind economic circumstance." Neverthe- 



186 



There is a further difficulty to note at this point. The immediately pre- 
ceding remarks have assumed that the controverted measures taken by 
belligerents — apart from reprisals — were readily acknowledged to be 
departures from the strict letter of the law. Normally, however, the 
novel measures resorted to by belligerents have been viewed by the latter 
as adaptations to changed conditions permitted by, and taken within, the 
established legal framework of neutral-belligerent relations. Here again 
the belligerent's claim could not always be dismissed as a patent subterfuge 
for the justification of unlawful action. In retrospect, it is all too easy to 
fall into the error of exaggerating the degree to which the maritime powers 
of the world had by 1914 settled upon the limits of the belligerent right to 
interfere with neutral trade. In fact, many points of controversy had 
remained unresolved throughout the preceding century. A case in point 
was the all important question of trade in contraband, a question that had 
long provided the controversial core of neutral-belligerent relations. 12 

In the years preceding the outbreak of World War I an attempt was made 
to resolve these various points of controversy. The 1909 Declaration of 
London had laid down a fairly definitive code governing neutral-belligerent 
relations at sea. But the Declaration was never subsequently ratified by 
any of the signatory Powers, and although most of the belligerents an- 
nounced their initial willingness in 1914 to adhere to the provisions of 
that instrument, subject to certain reservations, it was not long before the 



less, he goes on to observe that: ' 'The real difficulty lay in the fact that the 1914 war had created 
conditions for which the existing prize law was unprepared, and the point at issue between 
Great Britain and the neutrals was, or should have been, not whether the letter of the existing 
international law was being observed, but whether the new practices demanded by the changed 
conditions of economic warfare were in accordance with the spirit of international law as it 
concerned the relations of belligerents and neutrals. The inadequacy of the existing law becomes 
clear when it is remembered that in 1914, and indeed in 1939, there had been no generally 
ratified agreement [i. e., on the subject of neutral commerce] since the Declaration of Paris in 
1856." But if Medlicott has reference to the nineteenth century "spirit of international law as 
it concerned the relations of belligerents and neutrals" it is very doubtful whether the "new 
practices demanded by the changed conditions of economic warfare" were in basic accord with 
this spirit. Of course, it may be argued instead that the decisive point was not the "spirit of 
international law" but rather the changed conditions which led belligerents to depart from 
this law — though the latter contention places the matter on a quite different basis. Medlicott 
has further observed that: "The whole approach to the problem of contraband at the Hague 
Conference was, indeed, governed by an assumption of fact which happened to be wrong, 
namely, that the control of contraband was powerless to accomplish its purpose and its only 
result was to harm neutral commerce." Yet, the "assumption of fact" referred to was based 
only in part upon technical considerations as to the capabilities of belligerents in interfering 
with neutral trade. In part, this "assumption of fact" had as its basis the expectation that for 
reasons of political expediency the traditional law would have to be observed — at least in 
broad outline. 
12 See pp. 2.63 ff. 



187 



Declaration was substantially abandoned by the belligerents. 13 During 
World War II the London Declaration ceased to have real significance as a 
standard for judging belligerent behavior. 14 In effect, then, many of the 
long-standing controversies over neutral rights at sea were never satisfac- 
torily resolved. In both World Wars these controversies were to provide 
ample opportunity to belligerents for pursuing courses of action whose 
unlawful character could not be regarded as self-evident, despite neutral 
assertions to this effect. 

To the difficulties resulting from the claim of changed conditions and 
the uncertainty characterizing a substantial portion of the traditional law 
must be added the seemingly insoluble problem of belligerent reprisals at 
sea. In the final analysis, a number of belligerent measures bearing upon 
neutral trade could scarcely be reconciled even with the most liberal inter- 
pretation of the traditional law. Belligerents therefore sought to justify 
these measures by the claim that they formed a necessary — and permitted — 
incidence of reprisal action taken in response to the unlawful behavior of 
an enemy. Elsewhere in this study the content of the belligerent reprisal 
measures during the two World Wars are reviewed and analyzed. 15 So also 
are the legal considerations — still largely obscure — raised by inter-bel- 



13 The declaration was formally abandoned by the Allied Powers on July 7, 1916. In a 
memorandum addressed to neutral governments it was stated that the Declaration of London 
"could not stand the strain imposed by the test of rapidly changing conditions and tendencies 
which could not have been foreseen" and that the Allies would thereafter "confine themselves 
simply to applying the historic and admitted rules of the law of nations." 

Long before this formal action was taken the several reservations made to the Declaration 
by the Allied Powers, plus the operation of reprisal orders, had reduced its force to a vanishing 
point. 

14 An English writer has recently noted that: "The most striking difference between 1914 
and 1939 is the complete absence of the Declaration as a factor of any importance in modern 
prize law. . . ." S. W. D. Rowson, "Prize Law During the Second World War," p. 170. 
This is perhaps something of an overstatement. The German Prize Law Code of September 
1939 substantially followed the Declaration, and the prize codes of a number of other states 
also followed it in part. The attitude of the United States — as a neutral — with respect to the 
Declaration had certainly changed, however. Whereas in 1914 this country had urged all 
of the belligerents to accept the Declaration of London as an authoritative code of conduct, a 
similar request was not forwarded to belligerents in 1939. And whereas during the period 
1914-17 the United States depended very largely in its controversies with belligerents upon the 
provisions of the Declaration, hardly a reference was made to this instrument in American notes 
addressed to belligerents during the 1939 war. Nevertheless, the 1909 Declaration of London 
continues to be of some importance in an inquiry into the law regulating belligerent inter- 
ference with neutral commerce, if only for the reason that it is the best indication of what the 
major naval powers were prepared to accept in the period preceding World War I. And even 
though the claim made in the preamble of the Declaration — that the rules contained therein 
"correspond in substance with the generally recognized principles of international law" — was 
not altogether justified, it is true that in most respects the instrument was in accord with 
previous practice and custom. 

16 See pp. 7.^6-^1^. 



188 



ligerent reprisals which adversely affect neutral rights. 16 Here, it is 
sufficient to sketch in broad outline the controversy thus raised between 
belligerent and neutral and to observe that whatever the strictly legal 
merits of this controversy the overall effect in practice of belligerent 
reprisal measures has been to subvert the traditional rules regulating the 
scope of the measures permitted to belligerents as against neutral com- 
merce. 

The right of a belligerent to take reprisal measures against an enemy 
that persists in unlawful behavior is unquestioned. However, in naval 
warfare the problem of reprisals is almost always complicated by the 
presence of neutrals. As might be expected, the position of neutral states 
consistently has been one of denying that reprisals between belligerents can 
serve to justify any infringement of neutral rights. Such infringement, it 
has been contended, can follow only from a failure on the part of the 
neutral state to fulfill its duties. Belligerents, while not denying that 
reprisals taken in response to an enemy's misconduct should avoid — as far 
as possible — affecting neutral rights, have nevertheless refused to concede 
that consideration for neutral rights constitutes an absolute restriction 
upon belligerent measures of retaliation. This conflict of opinion be- 
tween neutral and belligerent has been complicated further by the fact 
that normally the unlawful acts imputed to a belligerent by an enemy 
have adversely affected neutral rights as well. In this situation the 
injured belligerent has contended that if a neutral state will not or cannot 
take the necessary steps to compel the lawbreaker to observe neutral 
rights it may not complain if the other belligerent, in the course of 
retaliating upon an enemy, resorts to similar restrictions upon neutral 
rights. And here again the reply of the neutral has been to reject the 
belligerent's contention that the latter 's obligation to respect neutral 
rights is dependent upon the effectiveness of the measures taken by the 
neutral to secure belligerent respect for these rights. 

It will be readily apparent that if the belligerent's point of view is ac- 
cepted the practical effect is to charge the neutral with the task of insuring 
that belligerents behave in conformity with the established law. In a 
major war the burden that is thereby imposed upon neutrals will usually 

16 See pp. £51-8. In these later comments the attempt will be made to show that — contrary 
to the contentions of belligerents and the opinions of numerous writers — it is a misnomer to 
categorize many of the belligerent measures in question as reprisals. This follows, in part, 
for the reason that the mere inability of the neutral to resist effectively the unlawful acts by 
one belligerent against its trade — a frequent cause for so-called belligerent "reprisal" orders — is 
not a violation of a neutral's duties. Hence, even if the other belligerent is permitted — in 
principle — to restrict neutral trade in a similar manner, such measures are not to be interpreted 
as reprisals directed against the neutral. But neither may they be interpreted as reprisals 
against the enemy that has initially resorted to unlawful measures against neutral trade, since 
in taking these measures the enemy has violated no legal right of the other belligerent. For 
convenience, however, these — and other — considerations may be neglected here, and the usual 
terminology may be followed. 

189 



prove out of all proportion to their resources, a conclusion clearly borne 
out by the experience of the two World Wars. Add to this the considera- 
tion that belligerents have been in frequent disagreement in their under- 
standing of the rules regulating the scope of belligerent obligations, both 
with respect to the enemy as well as to the neutral. Given the first oppor- 
tunity, therefore, it has proven relatively easy for one belligerent to charge 
an enemy with the violation of neutral rights at sea and, in the absence of 
an immediate cessation of the allegedly unlawful action through vigorous 
neutral response, to consider itself entitled to take appropriate measures of 
its own against neutral trade. The neutral, caught up in the belligerents' 
controversy, has generally been made the common victim of the belligerent 
difference of opinion. 17 

Nor can the essential function served by belligerent "reprisals" be over- 
looked. Clearly, this function has not been to preserve the traditional 
rights of neutrals. On the contrary, the evident intent of the belligerents 
has been to use reprisals as an instrument for changing this aspect of the 
traditional law of neutrality, and it was primarily for this reason that 
reprisal measures became a permanent feature of naval hostilities in the 
1914 and 1939 wars. 18 Where belligerents have differed has not been in 
their resolve to use reprisals as a means for shutting off all neutral trade 
with an enemy but rather in the distinctive methods they have followed in 
pursuing this aim; and it is no less an error to refuse to recognize the effects 
this common belligerent goal has had upon the rules regulating neutral 
trade than it is to dismiss as without legal significance the varying methods 
belligerents have pursued in attempting the economic isolation of an 
enemy. 19 



17 It is equally evident, however, that if the neutral's position is endorsed the law-abiding 
belligerent is placed at a grave disadvantage. Nor can this disadvantage be characterized 
merely as one which would deprive the belligerent of striking at an offending enemy "through 
the side" of the neutral. It has already been noted that in many situations the unlawful acts 
of an enemy — affecting belligerent and neutral alike — can only be effectively countered by acts 
which equally bear upon both the offender and the neutral. Apart from strictly legal con- 
siderations, there is much to be said for both the positions of belligerents and neutral. And 
it is largely for this reason that the entire problem of reprisals at sea has appeared to many as 
an insoluble dilemma. 

18 It is this consideration, above all others, that has rendered belligerent reprisal measures 
subject to severe criticisms. The rapidity with which belligerents resorted to reprisal orders 
of indefinite duration allowed hardly any conclusion other than that they welcomed an enemy's 
violation — or alleged violation — of law in order to resort to reprisal measures. A revealing 
discussion of the function served by reprisals has been presented by Medlicott (op. cit., pp. 112. 
ff.) in tracing the origins of the British Reprisals Order in Council of November 2.7, 1939, the 
purpose of which was to shut off all enemy exports (see p. 31Z). 

19 For those observers who insist upon viewing the experience of World Wars I and II as little 
more than one long demonstration of "belligerent lawlessness" at sea, the significance of the 
various means by which belligerents sought to alter traditional neutral rights is bound to 
prove very limited. Thus, Thomas Baty (International Law in Twilight (1954), p. 105) can 



190 



B. THE ABANDONMENT OF TRADITIONAL NEUTRALITY BY 
NON-PARTICIPANTS: THE EMERGENCE OF "NON-BEL- 
LIGERENCY" 

The decline of neutrality cannot be attributed simply to the fact of bel- 
ligerent encroachment upon traditional neutral rights. The neutral states 
as well have played an important role in effecting this decline. It is a com- 
monplace that the neutrality of the nineteenth century was based very 
largely upon an attitude of indifference on the part of non-participants to 
the final outcome of a given conflict. 20 Yet, the conclusion frequently 
drawn today from this former indifference of non-participants — that the 
traditional institution of neutrality reflected the absence of solidarity and 
"community feeling" 21 — would appear to be almost the reverse of the 

dismiss the question of belligerent methods by declaring that at present neutrals are "ground 
between the millstones of the navally strong and weak belligerents — between the perverted 
jurisprudence of the former and the explosives of the latter." Yet it is disturbing to find that 
writers who do not share this evaluation of the two World Wars nevertheless manifest on 
occasion a similar lack of sensitivity to the significance of — and differences between — belligerent 
methods. — No doubt it is true that the British "long-distance blockade" resembled the Ger- 
man unrestricted submarine warfare in the resolve to isolate the enemy economically. It is 
equally true that both systems represented departures, though in varying degree, from the 
letter of the traditional law. But the British system clearly did not resemble the German 
system in the methods pursued against neutral trade, and the differences in this respect as 
between the two systems must receive prominent emphasis. The law of neutrality at sea is, 
after all, largely a matter of method. Nor is it enough to say that had Germany possessed 
adequate surface naval power she would have pursued, in all probability, the same methods 
as Great Britain. This may well be granted, though the admission does not — and cannot — 
diminish the importance of the fact that different methods were in fact followed. 

20 It should perhaps be made clear that this attitude of indifference on the part of non-partici- 
pants constituted a -political fact, and ought not to be considered as descriptive of a legal obligation 
imposed upon neutrals by the traditional law. It has never been required of neutral states 
that they be "indifferent" to the outcome of a war. In later pages it will be noted that the 
duty to observe a strict impartiality toward the belligerents is noc to be understood as obligating 
neutral states to entertain an attitude of indifference toward the participants and toward 
the ultimate outcome of hostilities (see pp. 104-5). At tne same time, it would be futile to deny 
that — certain exceptional cases apart — an attitude of indifference on the part of non-participants 
did form an important part of the political sub-stratum upon which the traditional legal insti- 
tution of neutrality — marked by the principle of strict impartiality — could develop and flourish. 
In this sense it is true that the traditional or classic neutrality of the nineteenth century was 
based upon an attitude of indifference on the part of non-participants, and that with the disap- 
pearance of this political fact in the twentieth century the traditional legal institution of neu- 
trality has become increasingly difficult to maintain. 

21 See, for example, Quincy Wright, "The Present Status of Neutrality," A. J. I. L., 34 (1940), 
pp. 407-15 and "Repeal of the Neutrality Act," A. J. I. L., 36 (1941), pp. 15-2.4- An ^ Lalive 
(pp. cit., p. 73) points out that neutrality is increasingly viewed as "an obstacle to solidarity, 
to international organization, and to the formation of a society founded on respect for, and 
enforcement of, law." Nevertheless, these views form a clear reversal of the convictions of 
an earlier period. Thomas Baty (op. cit., pp. 107, 114) has noted that: "One of the most deeply 
seated convictions of the Victorian age was that belligerents must not be allowed to make their 

191 



truth. If anything, the strength of neutrality during the nineteenth cen- 
tury may be taken as an indication of solidarity, not its absence. Neutral- 
ity, it has been rightly observed, "is possible only when there is sufficient 
community of interest between the belligerents and between the belligerents 
and the neutrals to cause the latter not to care too greatly which side wins. 
Neutrality therefore depends upon the existence of enough community to 
make the outcome of a war not a matter of alarming concern to the way of 
life of non-participating States. Where the community schism runs deep, 
neutrality becomes more and more difficult to maintain." 22 

It is at least clear that given the circumstances in which the two World 
Wars were fought non-participants have been increasingly drawn to the 
pursuit of discriminatory policies and to the abandonment of the strict im- 
partiality demanded by the traditional law. 23 Thus one of the marked de- 
velopments of the second World War was the emergence of so-called "non- 
belligerency," a term used to indicate the position of states that refrained 
from active participation in hostilities while at the same time abandoning 
the duties heretofore imposed upon non-participants. 24 When judged by 
the standards established for non-participants by the traditional law of 
neutrality, the legal significance of " non-belligerency " does Dot permit of 
much doubt; insofar as it implied the abandonment by non-participants of 
the strict impartiality demanded by the traditional law it served to give rise 
to the belligerent right of reprisal. 25 When judged from a still broader 



private quarrels an excuse for disturbing the rest of the world. War might not be obsolete, 
but the belligerent must not make himself a nuisance. . . . The outstanding feature of our 
day is that whilst in the nineteenth century belligerents were considered a public nuisance, 
it is now the neutral who is the nuisance." Certainly, the well-known opinion of John 
Westlake, written in the pre-World War I period, that "neutrality is not morally justifiable 
unless intervention in the war is unlikely to promote justice, or could do so only at a ruinous 
cost to the neutral" (International Law, Vol. II, p. 162.) may hardly be said to have commanded 
widespread agreement. 

22 U. S. Naval War College, International Law Situations, 1939, p. 54. 

23 The short-lived policy of "renunciatory" neutrality pursued by the United States for a 
period preceding and following the outbreak of war in 1939 forms an exception which — in 
view of later events — only seems to throw in bolder relief the strength of the forces that have 
operated in the contrary direction. From a policy in which traditional neutral rights at sea 
were renounced in favor of a self-imposed isolation that went far beyond the requirements of 
existing law, the United States rapidly moved in 1940 to a policy of discrimination and to an 
open abandonment of neutral duties that finds few parallels in the modern history of neutrality. 
Elsewhere in this study the principal features of United States' neutrality legislation during 
this period are briefly reviewed (see, in particular, p. zio(n)). 

24 For a discussion of the legal issues raised by "non-belligerency" in World War II, see pp. 

J 97-9- 

25 Unless, of course, such departure from impartiality had as its basis a treaty permitting the 
taking of discriminatory measures against a state unlawfully resorting to war (see pp. 166 ff.). 



192 



perspective, however, so-called " non-belligerency" must be seen as a further 
manifestation of the recent decline of neutrality. 26 

C. CONCLUSIONS 

In view of the experience of the two World Wars the suggestion has been 
made that in evaluating the prospects for observance of the traditional law 
regulating neutral-belligerent relations in future conflicts, it may be useful — 
as a practical measure — to distinguish between great and small wars. 27 In 
great wars, involving most of the major states and fought with the inten- 
sity that characterized the two World Wars, the expectation that bellig- 
erents will closely adhere to the traditional law in their behavior toward 
non-participants necessarily must prove remote. Nor is it to be expected 
that the non-participants in such wars will prove either able or willing to 
maintain a strict impartiality toward the belligerents. In a limited war, 
however, it is considered altogether possible that the belligerents may be 
required, of necessity, to refrain from subjecting non-participants to what 
has often resembled discretionary treatment. In turn, the non-participants 
may consider it in their interests to pursue a policy of strict impartiality. 28 

The evident merit of this suggestion is to be found in the clear recognition 
it accords to the importance of the relative strength of belligerents and 
neutrals in estimating the future effectiveness of a legal regime that has 
served to regulate neutral-belligerent relations on the basis of an approxi- 
mate equality of rights. But even if the assumption of a return to limited 
war is granted it is by no means certain that many of the rules that have 
heretofore made up the traditional system will be given effective applica- 
tion. Although the contemporary decline of the traditional institution of 
neutrality must be attributed in large measure to an imbalance in the rela- 
tive power of belligerents and neutrals it would surely be a serious error to 



26 Thus it is from this broader perspective that Julius Stone (op. cit., p. 405) writes: "Can 
this American (as well as the Italian non-belligerency on the other side) be reduced merely to 
violation of the traditional rules of neutrality, which Germany and the Allies respectively were 
not prepared to treat as a casus belli 7 . Only history can finally show whether these events 
can be dismissed as a series of mere neutral infractions of neutrality, tolerated by the injured 
belligerents." 

27 "It now seems reasonable to expect that practice in future may draw a distinction between 
great wars and small, or at least between general wars involving the greater part of the world 
and limited wars in which only two or not more than a few states are engaged. There are 
indeed some signs that this distinction is already beginning to be drawn." H. A. Smith, 
op. cit., p. 75. 

28 It is, from this latter point of view, difficult to envisage two or three of the smaller states 
engaged in war successfully imposing "rationing" policies upon Great Britain (or, for that 
matter, upon any of the major powers). If anything, recent experience would appear to indi- 
cate that the principal difficulty would be to obtain the endorsement of a policy of strict im- 
partiality on the part of the major non-participants. 



193 



neglect the importance of other factors which have contributed to the pres- 
ent situation. Perhaps the most significant among these other factors has 
been the gradual invalidation of an assumption fundamental to almost the 
whole of the traditional law of neutrality — that a clear distinction could be 
drawn between the public and private spheres and that the neutral state 
would not enter into economic activities long considered outside its proper 
functions. It is difficult to discern what possible effect — if indeed there 
would be any effect — limited wars could have upon this growing obsoles- 
cence of rules dependent for their operation upon the possibility of pre- 
serving a clear distinction between neutral state and neutral trader. 29 

In any event, it must be observed that whatever the merit of the above 
suggestion it can have only a limited relevance to an inquiry into the 
present status of the traditional law governing neutral-belligerent relations. 
An analysis that is to constitute something more than speculation over 
future possibilities must concentrate instead upon an evaluation of the 
actual materials at hand, that is upon an examination of the recent behavior 
of states in applying — or failing to apply — once valid rules. In a word, 
attention must be directed to the experience of the two World Wars, how- 
ever difficult it may be to assess this experience in terms of its effect upon 
the traditional law. 

In performing this task, considerations raised earlier concerning the 
relationship between the validity and the effectiveness of rules may be 
considered applicable. 30 Where, for example, belligerents have effectively 
asserted new forms of control over neutral trade on the high seas, and 
neutrals have acquiesced in such measures, the traditional law may well 
be regarded as modified. Less certain are those belligerent measures which, 
though perhaps effectively exercised, drew repeated protests from neutral 
states and which were largely justified by the belligerent claim to the right 
of reprisal against allegedly unlawful acts of an enemy. In these latter 
circumstances — and they formed the more numerous and more important 

29 See pp. 109-1 8 for a more detailed consideration of the present status of the distinction between 
neutral state and neutral trader, and the effect the dimming of this distinction has had upon the 
traditional law. It is only right to add that in making the suggestion that future practice 
may distinguish between great and small wars Smith draws careful attention to the profound 
changes that have occurred in the activities undertaken by the modern state and the impact 
of these changes upon the traditional law. Indeed, most recent writers have shown an acute 
awareness of the problem and of the difficulties it poses. 

80 Sec pp. x8~3z. 



194 



controversies between neutral and belligerent — any conclusions drawn 
from recent conflicts must necessarily prove tentative. 31 

31 It is only to be expected that in performing this task the opinions of writers will vary — at 
times considerably. For example, one well-qualified observer has recently stated: "It is now 
clear that in view of the events of the two World Wars, the Hague Conventions which regulate 
sea warfare have actually shared the fate of the Declaration of London. This is due as much 
to abuse on the part of the belligerents — particularly Germany — as to the inherent and inevitable 
weakness of a series of conventions whose intention was to protect the rights of neutrals rather 
than those of belligerents." S. W. D. Rowson, op. cit., p. 170. While recognizing the necessary 
relationship that must obtain between the effectiveness and the binding quality of law this 
opinion is regarded as extreme. It hardly seems warranted to state that Hague XIII, Concerning 
the Rights and Duties of Neutral Powers in Maritime War, "has shared the fate of the Declara- 
tion of London." The Declaration of London, which sought to regulate the problem of neutral 
trade, was never ratified by the signatory states, formed from the start the object of endless 
controversy, and was openly abandoned by many of the belligerents in the opening stages of 
the first World War. With limited exceptions, the provisions of Hague XIII received, in both 
wars, the adherence of both neutrals and belligerents. It may also be noted that at the time 
of their conclusion the Hague Conventions regulating sea warfare — insofar as they departed 
from nineteenth century practice — were more commonly regarded as a concession to belliger- 
ent — rather than to neutral — pretensions. 



399334—57 14 195 



VIII. RELATIONS BETWEEN NEUTRAL AND 
BELLIGERENT STATES IN NAVAL WAR- 
FARE 

A. THE CONCEPT OF NEUTRALITY 

Under general international law states that refrain from participating 
in war occupy a status of neutrality. As a consequence of such non- 
participation international law imposes duties and confers rights upon both 
neutral and belligerent, and the law of neutrality comprises the totality 
of the duties imposed and the rights conferred upon participants and non- 
participants. It is to be observed, then, that although neutrality may be 
defined simply as the status of non-participation in war, the legal signifi- 
cance of such non-participation must be seen in the fact that it brings into 
operation numerous rules whose purpose is the regulation of neutral-bellig- 
erent relations. Not infrequently, however, these rules — the consequence 
of non-participation — have been identified with neutrality itself. In 
particular, there has long been a widespread tendency to identify neutrality 
with the principle of impartiality. 

In a sense, the identification of neutrality with the various duties imposed 
upon non-participants, and especially with the duty of impartiality, is 
readily understandable. The principle of impartiality stands at the very 
summit of the duties imposed upon non-participants. Nevertheless, it is 
submitted that this identification of neutrality with the duties imposed by 
general international law upon non-participants leads — both in theory and 
practice — to certain difficulties and ought to be avoided. 1 Instead, neu- 



1 In the preceding volume published in this series (Hans Kelsen, Collective Security Under Inter- 
national Law, pp. 141-4) the endeavor has been made to examine and to criticize the usual 
identification of neutrality with the consequences traditionally attached to the status of non- 
participation in hostilities. Professor Kelsen has observed that the earlier Hague Conventions 
use the term neutrality somewhat indiscriminately to mean, among other things, both a status 
of non-participation in war and an attitude of impartiality on the part of non-participants. 
It is further observed that writers, too, have been frequently indiscriminate in their use of the 
term. Professor Kelsen has concluded, correctly it is believed, that the way to avoid ambiguity 
and confusion "is to understand neutrality as nothing else but the status of a state which is 
not involved in a war between other states, and impartiality as the principle according to 
which a neutral state shall fulfill the obligations and exercise the rights, which a neutral state 
has under general international law, equally towards all other belligerents." 



196 



trality may be considered simply as the status of states which refrain from 
participation in hostilities. (Put in a slightly different manner, the only 
essential condition for neutral status is that of non-participation in hos- 
tilities.) It is — of course — quite true that as a result of non-participation 
in war general international law imposes certain duties and confers certain 
rights upon non-participants, and that these duties and rights make up 
what is commonly termed the traditional institution of neutrality. It is 
equally true that a neutral state must carry out its duties and enforce its 
rights in an impartial manner and that if the neutral state fails to do so the 
belligerent made the object of discriminatory measures is no longer bound 
to observe its duties toward the neutral. But so long as the neutral state 
refrains from participating in the hostilities, so long as it refrains from 
attacking one of the belligerents, and belligerents refrain from resorting 
to war against the neutral, a status of neutrality is preserved. 2 

These brief considerations would appear relevant in clarifying the legal 
position of states which refrain from active participation in a war though 
refusing to carry out the obligations imposed upon non-participants by 
general international law — and particularly the obligation to remain 
impartial toward the belligerents. In the absence of a treaty granting 
non-participants the right to discriminate against one of the belligerents, 
and obligating the belligerent to permit this discrimination, such de- 
partures as non-participants may take from duties otherwise imposed upon 
them clearly afford belligerents the right to take appropriate measures of 
reprisal. Thus in pursuing discriminatory measures against the Axis 
Powers in 1940-41 the United States departed from its duties as a neutral, 
and insofar as these measures could not be justified on the basis of the 
Kellogg-Briand Pact 3 they furnished the Axis Powers with sufficient 



2 See Law of Naval Warfare, Section 2.30. The objection may be made to the identification of 
neutrality with non-participation in war that it suffers from a lack of precision, that it fails to 
indicate what "non-participation" signifies in law. The history of "neutrality" indicates 
that the status of "non-participation" has been regarded as compatible with quite disparate 
forms of behavior on the part of non-participants. Thus during the seventeenth and eighteenth 
centuries the passage of troops of one belligerent through the territory of a non-participant was 
permitted. After the nineteenth century, however, this form of "benevolent" neutrality was 
clearly forbidden to non-participants. — But this objection is not compelling. If anything, it 
would appear to add further support to the view adopted here, since it only serves to empha- 
size that the one essential condition for neutrality has always been that of non-participation in 
hostilities. It is, of course, quite true that the consequences of non-participation have varied 
considerably, and that the non-participation of earlier times is something quite different from 
the consequences attached to non-participation by the traditional or classic rules of neutrality 
as they developed during the course of the nineteenth and early twentieth centuries. However, 
the identification of neutrality with non-participation in hostilities in no way denies this fact. 
Nor does it obscure in any way the consequences still attached to a status of non-participation 
according to general international law. 

3 See pp. 166-70. 



197 



reason for claiming the right to resort to reprisals. 4 But prior to its actual 
entrance into hostilities as an active participant the United States retained 
its status as a neutral state. 

If the foregoing observations are accepted as correct then the legal sig- 
nificance of policies of "non-belligerency" becomes equally clear. It has 
already been observed that to the extent that this term has not been used 
merely as a synonym for the usual position occupied by non-participants 
it has served to indicate varying degrees of departure from the duties tra- 
ditionally consequent upon a status of non-participation in war. And 
once again it is to be noted that in the absence of a treaty granting non- 
participants the right — and, perhaps, even the duty — to discriminate against 
a belligerent, the failure of a neutral to observe the duties imposed upon 
non-participants by the traditional law affords belligerents the right to 
take measures of reprisal against the neutral. By abandoning its duties 
the neutral thereby surrenders its right to demand from belligerents that 
behavior which it would otherwise be entitled to claim. At the same time, 
a neutral status is maintained so long as the "non-belligerent" refrains 
ftom actively participating in the hostilities, either through attacking one 
of the belligerents or through being attacked by a belligerent. In turn, 
this must imply that the traditional duties and rights attending a status 
of non-participation in hostilities continue to remain applicable. Nor does 
it appear that the events of World War II — a period during which a number 

4 There is no need to inquire here into the political motives a state may have in departing 
from the duties imposed upon it as a non-participant. In resorting to discriminatory measures 
a state may claim that its vital interests are threatened by the course a war is taking. In part, 
the justification for both the destroyer-base agreement with Great Britain and the Lend- 
Lease Act (see p. zoy(n)) rested upon considerations that may be regarded as devoid of proper 
legal foundation. However, in testifying (January 16, 1941) before Congress on behalf of 
the then pending Lend-Lease Act, the Secretary of State declared that although the provi- 
sions of the proposed act would admittedly lead to violations of established rules of neutrality 
under "ordinary circumstances . . . we are not here dealing with an ordinary war situation. 
Rather we are confronted with a situation that is extraordinary in character." U. S. Naval 
War College, International haw Documents, 1940, p. 109. In reviewing these same acts Hyde 
(of. cit., pp. ZZ34-7) also denies their character as violations of international law, contending 
that a neutral need not establish "that inherently illegal action has been directed against 
itself by the belligerent . . . before it can properly free itself from restrictions that normally 
rest upon it. . . ." Hyde draws a distinction between the "breach and the inapplicability 
of particular rules of neutrality," concluding that the acts in question fell within the latter 
category, their inapplicability following from the alleged right of a neutral to depart from 
neutral duties in order to preserve what it considers to be its vital interests. 

It is extremely difficult to accept this argument. According to general international law, 
neutral departure from the duty of impartiality may be justified only as a reaction to the bellig- 
erent's violation of neutral rights. Even then, it seems correct to state that such measures of 
reprisal must be taken against the offending belligerent and not take the form of assistance furnished 
to the other belligerent. On the other hand, it is quite true that a neutral can disregard its 
duties as a non-participant if it considers its vital interests threatened — as the United States 
obviously did so feel in 1940-41. But in so doing the neutral forfeits the right to demand 
from the offended belligerent that behavior to which it would otherwise be entitled. 

198 



of non-participants declared themselves to occupy a status of " non-bellig- 
erency" — provide substantial reason for suggesting any contrary con- 
clusions. 5 

B. THE COMMENCEMENT AND TERMINATION OF 

NEUTRALITY 

Unlike the law governing the mutual behavior of combatants, a large 
part of which may be considered operative in any international armed con- 
flict, 6 the rules regulating the behavior of neutrals and belligerents remain 

5 An excellent survey of World War II events in this regard is given by J. L. Kunz, "Neutrality 
and the European War 1939-1940," Michigan Law Review, 39 (1940-41), pp. 747-54. Italy, 
Turkey, Hungary and Spain — among other states — proclaimed a status of "non-belligerency." 
Professor Kunz has concluded that the latter "has no foundation in law, is exclusively a political 
creation. It appears in Protean forms: there are 'non-belligerents' who are practically neutral, 
and 'neutrals' who are 'non-belligerents'; some states are 'non-belligerent' out of their own 
free will, others more or less by coercion. 'Non-belligerency' ... is born out of the desire 
to intervene under the name of non-intervention, to be in the war and yet not to be at war. . . . 
While the 'non-belligerent' is fully aware that the disfavored belligerent has a right in law to 
resort to reprisals or to a declaration of war, it is believed that from reasons of political expedi- 
ency he will not do so" (pp. 753-4). The majority of writers concur with this position. 
On the other hand, the assertion that the traditional law does not "recognize" or does not 
attach "legal consequences" to a position of "non-belligerency" may prove somewhat mis- 
leading. The traditional law clearly does recognize this position, and precisely for the reason 
that it does attach to it certain legal consequences (e. g., reprisals). In fact, it would seem 
that what writers actually have in mind when they declare that the traditional law does not 
recognize a condition of non-belligerency is that this law does not grant neutral states a right 
to depart from the duties otherwise imposed upon non-participants, a right in the sense that 
the injured belligerent is obliged to permit these acts and to refrain from taking reprisals. 
It is, for example, in this sense that Stone (op. cit., p. 383) may be understood when he remarks 
that: "The traditional law of neutrality confronts third states with only two choices, either to 
join in the war or to observe the duties of impartiality." — Furthermore, it is precisely the case 
of so-called "non-belligerency" that provides a clear illustration of the utility of identifying 
neutrality merely as the status of non-participation in hostilities. For although the "non- 
belligerent" may discriminate openly against one of the belligerents (and thereby furnish the 
latter with adequate cause for taking reprisals), it nevertheless retains a neutral status so long 
as it does not enter into the hostilities. If, on the other hand, neutrality is identified with the 
duty of impartiality then the discriminating non-participant must be regarded as not only 
violating its duties under general international law but as no longer neutral. The latter con- 
clusion is obviously unwarranted, and its basis may be attributed to the insistence upon identi- 
fying neutrality with the principle of impartiality. — In this connection, however, it has been 
observed that: "The notion of neutrality as merely non-involvement in direct hostilities is 
inconsistent with the traditional concept, and if it should come to have this meaning, the con- 
cept would have been strikingly narrowed." Robert R. Wilson, "'Non-belligerency' in 
Relation to the Terminology of Neutrality," A. J. I. L., 35 (1941), pp. 1x^-3. But the "notion 
of neutrality as mere non-involvement in hostilities" is not inconsistent with the traditional 
concept. The inconsistency is rather between the duties attached by the traditional law to a 
status of non-involvement in hostilities and the legally untenable contention thai so-called 
"non-belligerents" possess the right to depart from these duties, while remaining non-partici- 
pants. This is indeed the crux of the matter, and the events of World War II can hardly be 
considered as detracting from this conclusion, 
6 See pp. 2.3-5. 

199 



strictly dependent for their operation upon the existence of a state of war. 
It may be, however, that states engaged in armed conflict are unwilling to 
issue a declaration of war or even to acknowledge the existence of a state of 
war. 7 In such situations it would appear that the decision as to whether 
or not to recognize the existence of a state of war, and thereby to bring into 
force the law of neutrality, must rest principally with third states. The 
attitude of the parties engaged in armed conflict need not prove decisive for 
third states, the latter being at liberty either to accept the position of the 
contestants (i. e., the position that war does not exist) or to reject this 
position and to invoke the law of neutrality. 8 

Although it is customary for belligerents to notify third states of the out- 
break of hostilities 9 the latter cannot rely on the absence of such notifica- 
tion as a justification for the non-performance of neutral duties if it is estab- 



7 Thus both parties to the Sino-Japanese conflict of 1937 refused to acknowledge the existence 
of a state of war — though the Assembly of the League of Nations later found that Japan had 
"resorted to war" in violation of her obligations under the Kellogg-Briand Pact. 

8 This, at least, would seem to be the only feasible solution to the difficult situation that may 
arise in cases of undeclared hostilities. In practice, however, third states are likely to take 
the position of the contestants at face value, since the rules of neutrality invariably operate to 
restrict the behavior of non-participants — particularly with respect to trade. It is only to be 
expected that third parties will normally desire to avoid bringing these restrictions into effect. 
Distinguish, though, between the operation of the law of neutrality as determined by inter- 
national law and the operation of municipal neutrality laws. The latter may be applied to 
situations other than war in the sense of international law. Thus Section 1 (c) of the Neutrality 
Act of May 1, 1937, declared that: "Whenever the President shall find that a state of civil strife 
exists in a foreign State and that such civil strife is of a magnitude or is being conducted under 
such conditions that the export of arms, ammunition, or implements of war from the United 
States to such foreign State would threaten or endanger the peace of the United States, the 
President shall proclaim such fact, and it shall thereafter be unlawful to export, or attempt to 
export, or cause to be exported, arms, ammunition, or implements of war from any place in 
the United States to such foreign State, or to any neutral State for transshipment to, or for the 
use of, such foreign State." For text, see U. S. Naval War College, International Law Situations, 
1939, PP- 101 ff. 

It should be observed that operation of the international law of neutrality presupposes, and 
is dependent upon, the recognition of insurgents in a civil war as belligerents. Prior to such 
recognition — whether by the parent state or by third states — there can be no condition of 
belligerency, hence no neutrality in the sense of international law. Although third states may 
grant any kind of material assistance to the parent government fighting insurrectionists, aid 
to the latter amounts to intervention in the internal affairs of the parent state and is forbidden. 
Of course, once the parent state recognizes the insurgents as belligerents, or once third states 
so recognize the insurgents independent from any act of recognition by the parent state, the 
civil war is transformed into an international war, and the rules of neutrality come into force. 
For a survey of the problems arising in this regard, see H. Lauterpacht, Recognition in International 
Law (1947), Part III. And for U. S. practice, Hyde, op. cit., pp. 1330-5. 

9 According to Article 2. of Hague III (1907), Relative to the Opening of Hostilities, a state 
of war "must be notified to the neutral Powers without delay, and shall not take effect in regard 
to them until after the receipt of a notification, which may even be given by telegraph. Neutral 
Powers, nevertheless, cannot plead the absence of notification if it is established beyond doubt 
that they were in fact aware of the state of war." 

200 



lished that knowledge of the commencement of war in fact existed. Third 
states, in turn, are not required to issue special declarations proclaiming 
their intention to refrain from participating in the war and to observe the 
duties of a neutral state. 

In practice, however, third states generally do issue, upon the outbreak 
of war, neutrality declarations or proclamations that are directed not only 
to their own officials and subjects but also to the belligerents. Interna- 
tional law in laying down the scope of a neutral's duties and rights leaves 
to the neutral state the task of fulfilling these duties and of exercising these 
rights. Within the limits prescribed by international law the neutral 
state may act at its discretion. It must regulate, in various ways, the 
behavior of individuals located within neutral jurisdiction. It must 
decide, within the limits imposed by international law, upon the use it is 
to allow belligerents of its waters and ports. Thus the neutral state may 
choose to allow the use of its waters and ports up to the limits prescribed 
by international law; but it may choose to place severe restrictions upon 
the entrance and stay of belligerent warships. Still further, the neutral 
state may desire to place restrictions upon the activities of its subjects — 
particularly with respect to trading with belligerents — in excess of any 
requirements laid upon the neutral state by international law. 10 Neutrality 
declarations form a practical necessity, therefore, not only for the informa- 
tion of the officials and the subjects of the neutral state but for the informa- 
tion of belligerents as well. 11 

10 As did the United States in its Neutrality Acts of 1935, 1937 and 1939 (see p. no(n)). 

11 It is for the reasons discussed above that the preamble to Hague Convention XIII (1907) 
declares that "it is desirable that the powers should issue detailed enactments to regulate the 
results of the attitude of neutrality when adopted by them." An invaluable collection of 
neutrality legislation and declarations has been compiled by F. Deak and P. C. Jessup, A Col- 
lection of Neutrality Laws, Regulations and Treaties of Various Countries (1939), 2. vols. (Neutrality 
declarations issued by third states upon the outbreak of World War II are contained in a loose- 
leaf supplement.) 

In 1939, upon the commencement of hostilities in Europe, the majority of non-participating 
states did issue neutrality declarations. For a general survey of World War II practice in this 
regard, see J. L. Kunz, op. cit., pp. 72.9-3Z. Hyde (op. cit., pp. 1316-7) has described United 
States practice in the following general terms: "Upon the outbreak of war, the executive issues 
a so-called neutrality proclamation addressed primarily to persons 'residing or being within 
the territory or jurisdiction of the United States.' By this means he endeavors to minimize 
the danger of the commission of acts which, unless retarded, may either expose the Government 
to the charge of neglect of its acknowledged duties as a neutral, or render their performance 
more burdensome. To that end the proclamation calls attention (a) to the several acts which 
the local statutory law prohibits; (b) to the decision of the executive as to the extent and 
nature of the privileges to be accorded belligerent ships of war within American waters; and 
(c) to the requirements of the law of nations as well as of the statutes and treaties of the United 
States, that no person within its territory and jurisdiction 'shall take part, directly or indirectly 
in the war. The individuals concerned are enjoined, moreover, to commit therein no act 
contrary to the law whether national or international. A warning is appended as to the 
impropriety of certain unneutral services on the high seas, and of the risks and penalties to 
be anticipated in case of capture. American citizens and others claiming the protection of the 

201 



The termination of neutral status presents no special difficulty, being 
subject to essentially the same considerations as those determining the 
commencement of neutrality. Just as there is no duty imposed by custom- 
ary international law upon third states to refrain from participating in a 
war that has once broken out, or for belligerents to respect a status of non- 
participation, so there is no duty either on the part of the neutral or on the 
part of the belligerent to refrain from resorting to war against one another 
at any time thereafter. It is one of the seeming paradoxes of the tra- 
ditional law that it may be violated only by acts of neutral or belligerent 
which fall short of war, though not by the act of resorting to war itself. 12 
And even though it may now be contended that a belligerent is no longer 
free to attack non-participants for whatever reasons it may deem desirable, 
in view of the changes — earlier discussed 13 — in the legal position of war, 
there is no doubt that if a non-participant has been so attacked the status 
of neutrality has come to an end. 

C. THE NEUTRAL'S DUTY OF IMPARTIALITY 

Among the duties imposed upon non-participants by the traditional 
system the duty of impartiality occupies a central position. 14 Despite its 

Government, 'who may misconduct themselves in the premises,' are informed that they can 
in no wise obtain any protection from the United States 'against the consequences of their 
misconduct.'" Upon the outbreak of war in September, 1939, the President issued, on Sep- 
tember 5, 1939, two proclamations of neutrality. The first, a "general neutrality proclamation," 
outlined those acts forbidden within the jurisdiction of the United States. The proclamation 
was based upon the rules and procedure of international law as well as upon domestic statutes 
in conformity with these rules. The second, a "special" neutrality proclamation, was based 
upon the Neutrality Act of May 1, 1937, later replaced by the Neutrality Act of November 

4> 1939- 

12 For a clear presentation of this and related aspects of the traditional institution of neutrality 

see J. L. Kunz (Kriegsrecht und Neutralitdtsrecht, pp. 114 ff.) who properly emphasizes that as there 
is no obligation under customary law to take up a neutral status at the commencement of war, 
so there is no obligation to remain neutral for the duration of war. The same lack of obligation 
applies, mutatis mutandis, in the relation of the belligerent to the neutral. Occasionally, 
however, writers have refused to draw these conclusions, despite the fact that they constitute 
the obvious consequences of the traditional status of war itself. Thus it has been stated that 
in a war in which the rules governing neutral-belligerent relations are being observed, a neutral 
ought not to abandon its status of non-participation "except for a reason not connected with 
the cause of the war in progress, nor ought a belligerent to draw the neutral into the war." 
To declare war "simply because it does not suit the belligerent any longer to recognize its 
[neutral's] impartial attitude, or because it does not suit the neutral to remain neutral any 
longer . . . ipso facto constitutes a violation of neutrality. ..." Oppenheim-Luaterpacht, 
op. cit., p. 671. But it is difficult to reconcile these and similar statements either with the tradi- 
tional legal interpretation of war or with the traditional institution of neutrality. 

13 See pp. 3-4, 165 ff. 

14 Although the law of neutrality imposes duties and confers rights upon neutral and bellig- 
erent alike the focus of an inquiry into this law may perhaps best be centered around the 
duties of the neutral. In brief, four general duties are imposed upon neutral states: the duty to 
act impartially toward the belligerents; the duty to abstain from furnishing belligerents any 

202 



admitted importance, however, the principle of impartiality has been a 
frequent source of controversy and misunderstanding. 15 As a duty imposed 
upon neutral states by the positive law the principle of impartiality may 
be defined simply as obligating neutral states to fulfill their duties and to 
exercise their rights in an equal (i. e., impartial or non-discriminatory) 
manner toward all the belligerents. 16 Hence the principle of impartiality, 
as a principle of the positive law, does not determine the contents of the 

material assistance for the prosecution of war; the duty to prevent the commission of hostile 
acts within neutral jurisdiction as well as to prevent the use of neutral jurisdiction as a base 
for belligerent operations; and, finally, the duty to acquiesce in certain repressive measures 
taken by belligerents against private neutral commerce on the high seas. Under these general 
duties — which establish correlative rights of belligerents — may be grouped almost all the 
specific obligations regulating the conduct of neutral states in naval warfare. The duties of a 
neutral state may also be classified — and frequently are so classified — as duties of abstention, 
prevention and acquiesence (or toleration). Duties of abstention refer to acts the neutral state 
itself must refrain from performing; duties of prevention refer to acts the commission of which 
within its jurisdiction the neutral is obligated to prevent; and, finally, duties of acquiescence 
have reference to neutral obligations to permit belligerent measures of repression against neutral 
subjects found rendering certain acts of assistance to an enemy. 

It is also helpful to observe that the duties of a neutral correspond to the rights of a bellig- 
erent, and that the rights of a neutral correspond to the duties of a belligerent. The neutral's 
duty to observe a strict impartiality corresponds to the belligerent's right to demand impar- 
tiality on the part of the neutral. At the same time, the neutral has a right to demand that 
the belligerent will act toward it in such a manner as to respect its position of impartiality, 
and there is no question but that the belligerent is under a duty to do so. A similar analysis 
applies, for example, to the neutral's duty to prevent its waters and ports from being used as a 
base for belligerent operations. Here again, the belligerent though having a right to demand 
that neutrals not permit their waters and ports from being so used, also has a duty to respect 
these waters and ports. Conversely the neutral, though having a duty, also has a right to 
demand that its waters and ports not be used by belligerents as a base of operations. 

15 In large measure, this controversy would appear to stem from a failure to distinguish with 
sufficient clarity between impartiality in the sense of a moral-political postulate and impar- 
tiality in the sense of a duty imposed upon neutral states by the positive law. Historically, 
the significance of the idea that neutrals should occupy a position of impartiality toward the 
belligerents has been considerable. Elsewhere (see pp. 191-1), emphasis has been placed upon 
the degree to which the attitude of impartiality — and even of indifference — toward the bellig- 
erents formed part of the political structure upon which the traditional law of neutrality 
depended for its effectiveness during the nineteenth century. At the same time, it is a mistake 
to believe that the rules regulating the status of non-participants represent the "logical" 
application of the conviction that neutrals ought to behave impartially. It is hardly possible 
to derive from this conviction — as a moral-political postulate — the specific rules of the positive 
law regulating the conduct of neutral states, if only for the reason that the law of neutrality 
is the product of other factors as well (not the least of which has been the perennial conflict 
of interest between neutral and belligerent, and the sheer necessity for reaching a compromise 
as between these conflicting interests). 

16 The preamble to Hague Convention XIII (1907) declares that "it is, for neutral Powers, 
an admitted duty to apply these rules impartially to the several belligerents." And Article 9 
of the same Convention reads: "A neutral Power must apply impartially to the two belligerents 
the conditions, restrictions or prohibitions made by it in regard to the admission into its ports, 
roadsteads, or territorial waters, of belligerent warships or of their prizes." A brief, though 
excellent, discussion of the neutral duty of impartiality is contained in Harvard Research in 

203 



duties imposed and the rights conferred upon neutrals. 17 The impartiality 
demanded by the traditional law of neutrality does not even relate directly 
to the contents of other neutral obligations and rights, but to the manner 
in which these obligations and rights shall be applied. 

Nor does the neutral's duty of impartiality require that the measures a 
neutral must — or may — take bear with equal effect upon the belligerents. 
It is entirely possible — and in many instances almost inevitable — that the 
strict fulfillment by a neutral of its obligations will result in the greater 
discomfort and disadvantage of one side in a war. A belligerent has not, 
for this reason, ligitimate cause for complaint. 18 Even more possible is 
the unequal effect upon belligerents that may result from the exercise of 
neutral rights. Thus a neutral state in the exercise of its right to place 
special restrictions upon the belligerents' use of its waters and ports is 
obligated only to see that the restrictions it imposes are applied impartially. 
The same may be said of the neutral state's privilege either to allow or to 
restrict, or to forbid entirely, the export trade carried on by its nationals 
with the belligerents. The fact that the exercise made of these neutral 
rights thereby places one of the belligerents at a disadvantage with respect 
to its opponent does not provide the disadvantaged belligerent with a lawful 
basis for claiming that it has been made the object of discriminatory 
measures. 

Nor is it a violation of neutrality if, in the exercise of its rights, a neutral 
state actually intends to confer an advantage upon one side. As already 
observed, the traditional law of neutrality permits to neutrals a substantial 
measure of discretion in determining whether or not to exercise their 

International Law, Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War, 
A. J. I. L., zz (1939), Supp., pp. 2.32.-5. Article 4 of the Draft Convention reads: "A neutral 
state, in the exercise of its neutral rights and in the performance of its neutral duties, shall be 
impartial and shall refrain from discriminating between belligerents." And see Law of Naval 
Warfare, Article z4ob. 

17 But see the statement in Oppenheim-Lauterpacht (op. cit., p. 653): "Neutrality may be 
defined as the attitude of impartiality adopted by third States towards belligerents and recog- 
nized by belligerents, such attitude creating rights and duties between the impartial states 
and the belligerents." However, it is not the attitude of impartiality which "creates rights 
and duties." It is rather the status of non-participation in war which creates rights and duties, 
among which is the duty of impartiality. 

18 "Impartiality is one of the essential features of neutrality. But at the same time I must 
emphasize very strongly . . . the fact that the statement that neutrality demands impartiality 
means simply impartiality in the application of law; it rarely ever results in impartiality in 
operation. International law imposes certain obligations upon a neutral nation which it 
must perform with reference to each belligerent in a war; but international law does not impose 
any obligation on a neutral to see that the performance of these obligations should operate 
in the same manner on each belligerent. And, in fact, a neutral obligation rarely, if ever, 
operates in the same manner on each belligerent." Statement by Charles Warren to the U. S. 
Senate Committee on Foreign Relations, February 5, 1936, cited in Hackworth, op. cit., Vol. 
VII, p. 377. For equally clear statements to the same effect, see Kunz, op. cit., p. Z17, and Ver- 
dross, Volkerrecbt, p. 41Z. 

204 



rights. 19 Within this area of discretion neutral states necessarily will be 
guided by considerations of policy, and the latter may dictate an exercise 
of neutral rights the result of which is intended to benefit one side in the 
conflict. The frequent contention that such intent on the part of the 
neutral state is a violation of the neutral's duty of impartiality has no 
foundation, however. The so-called "attitude of impartiality" demanded 
of neutrals does not refer, in its strict legal meaning, to the political motives 
behind neutral behavior, but to that behavior itself. Hence, it may well 
be that in the exercise of its rights the neutral state both intends to confer 
and does in fact confer an advantage upon one side. In doing so it does not 
depart from the duty of impartiality so long as it refrains from discriminat- 
ing against either belligerent in the actual application of those regulations 
it is at liberty to enact. 20 

19 It is to be observed, however, that the principle of impartiality cannot be interpreted as 
restricting the operation of the duties otherwise imposed upon a neutral state. Thus a neutral 
state is obligated to abstain from supplying belligerents with war materials and to prevent the 
use of its territory as a base for the conduct of belligerent operations. The duties of abstention 
and of prevention are violated even though the neutral state may act impartially in supplying 
belligerents with war materials and in permitting the use of its territory as a base of operations. 
In brief, the discretion allowed to a neutral does not pertain to the fulfillment of duties — though 
the neutral may choose different ways in which to secure the fulfillment of its duties — but to 
the exercise of rights. 

20 It should also be apparent from these remarks that the impartiality required of a neutral 
state does not obligate the latter to look upon the conflict with "indifference." The neutral 
state may be — in spirit — wholly in sympathy with one side in the conflict, but as long as it acts 
in an impartial manner, in the sense described above, it fulfills its obligation. — The failure to 
distinguish clearly between the various policies open to a neutral and the legal duties imposed 
upon the latter characterized much of the debate over American neutrality during the years 
prior to this country's entrance into World War II. This confusion of policy considerations 
with legal principle was particularly apparent in the unfounded contention that the duty of 
impartiality required not only the avoidance of any intent to confer an advantage upon one 
side in the conflict (even though such advantage would be conferred as a result of the impartial 
application of neutral rights) but also the adoption of measures that would insure the bellig- 
erents a factual equality of treatment. 

In this connection brief note should be taken of the possible bearing the principle of impar- 
tiality may have upon the neutral's attempt to alter its laws and regulations during the course of 
a war. When in November 1939 the United States modified certain features of its neutrality 
legislation the question arose as to the compatibility of such change with the duty of impar- 
tiality. One of the principal effects of the Neutrality Act of November 4, 1939, was to remove 
the earlier embargo placed on the sale to belligerents of arms, munitions and other implements 
of war. In taking this action the United States removed a restriction which, as a neutral, it 
need never have imposed. At the same time, the effect of the change — and, it was claimed, its 
intent — was to aid the Allies. It is at least doubtful, however, whether the legitimacy of 
such change as a neutral may make in its neutrality legislation during the course of a war can 
be determined by reference to the principle of impartiality. Instead, it would appear that 
attention must be directed toward establishing whether or not state practice does expressly 
limit the neutral in this respect, quite apart from the principle of impartiality. From this 
point of view the question is admittedly a close one, though there is much to be said for the 
position expressed in the preamble to Hague XIII (1907), to the effect that the neutrality regu- 
lations issued by a neutral "should not, in principle be altered, in the course of the war . . . 

205 



Finally, it must be emphasized that the duty of impartiality applies to 
the acts of the neutral state (i. e., to the acts of organs or officials of the 
neutral state) and not to the private acts of its subjects. Apart from certain 
limited exceptions, 21 the neutral state is under no obligation to prevent its 
subjects from giving material assistance to a belligerent, though it may 
forbid such behavior should it so desire. Clearer still is the absence of 
any duty imposed upon the neutral state to prevent its subjects from giving 
moral assistance to, or expressing sympathy for, one side in the conflict. 22 

D. THE NEUTRAL'S DUTY TO ABSTAIN FROM SUPPLYING 
BELLIGERENTS WITH GOODS AND SERVICES 

Together with the duty of impartiality, and of equal importance, is the 
obligation laid upon neutrals by the traditional law to abstain from furnish- 
ing belligerents with certain goods ,or services. 23 In naval warfare a 

except in a case where experience has shown the necessity for such change for the protection 
of the rights of that (neutral) power. ..." Certainly the United States took this position 
during World War I in response to complaints by the Central Powers that this country ought 
to place an embargo on the exportation of war implements to the Allies. The difficulty is in 
ascertaining when a neutral does change its regulations ostensibly for the purpose of better 
safeguarding its rights or fulfilling its duties, since it is commonly acknowledged that here — 
at least — change is permitted. 

21 See pp. 1x7-31. 

22 For this reason the claim advanced by the Axis Powers during World War II, that neutral 
states were obligated to prevent private expressions of sympathy or support for one belligerent, 
was wholly devoid of support in law. Known variously as "total" or "ideological" neutrality 
the essential features of this doctrine, as expounded by its leading protagonists, was to extend 
the neutral's duties to the strict control of public opinion in time of war as well as in time of 
peace. In particular, the neutral state was considered as obligated to maintain a rigid control 
over the press and to insure its impartiality. See E. H. Bockhoff, "Ganze oder halbe Neu- 
tralitat," in Nationalso%ialistische Monatshefte (1938), pp. 910 ff. Although the doctrine had 
no basis in law, and was repudiated by a number of writers (e. g., Edward Hambro, "Ideo- 
logische Neutralitat," Zeitschrijt fur ojfentliches Recht, 19 (1939), pp. 501 ff. and J. L. Kunz, 
"Neutrality and The European War," pp. 744-7), a number of neutral states did impose restric- 
tions upon the freedom of private expressions of sympathy for one side. Distinguish, however, 
between expressions of sympathy for a belligerent by the subjects of a neutral state and by the 
organs or officials of the neutral government. Occasionally it has been asserted that even the 
latter are compatible with a strict impartiality, though this is very doubtful. For United 
States practice in this respect, see Hackworth, op. cit., Vol. VII, pp. 374-7. 

23 In formulating the neutral duty under immediate consideration it is tempting to give it a 
broader scope than indicated above by stating that the neutral state is obliged to abstain from 
furnishing any form of assistance to belligerents as would aid the latter in the prosecution of war. Many 
writers formulate the neutral's duty in this manner. Nevertheless, this manner of formulation 
is apt to prove somewhat misleading, particularly when applied to neutral duties in naval 
warfare, if only for the reason that the use belligerents may make of neutral ports and waters 
do constitute — save perhaps in the purely formal sense — a form of "assistance to belligerents. 
It is, of course, always possible to assert that — by definition — a neutral state is forbidden to 
render any assistance to belligerents as would aid the latter in the prosecution of war; hence 
the example of the various uses belligerents may make of neutral waters and ports cannot con- 
stitute — again by definition — assistance to belligerents. But this is surely a fiction, which can 
hardly succeed in hiding the legal reality, and it would appear much more accurate merely to 

206 



neutral state violates this duty if it provides belligerents with warships, 
munitions, or war materials of any kind. 24 In this respect, Article 6 of 
Hague Convention XIII (1907) declares that the "supply, in any manner, 
directly or indirectly, by a neutral Power to a belligerent Power, of war- 
ships, ammunition, or war materials of any kind whatever, is forbidden." 25 
Where the neutral state directly acts to sell, lend or otherwise furnish a 
belligerent with "warships, munitions or war materials" the situation does 
not admit of doubt. 26 Nor is the unlawful behavior of the neutral state 

state — as a general principle — that neutrals are required to abstain from rendering certain 
supplies or services to belligerents, whether directly or indirectly. In this connection it is of 
interest to note that although Article 5 of the Harvard Draft Convention on The Rights and Duties 
of Neutral States in Naval and Aerial War (pp. cit., p. Z35) declares that a neutral state "shall 
abstain from supplying to a belligerent assistance for the prosecution of the war," the comment 
to this Article emphasizes the "considerable difficulty in drafting an adequate article on this 
subject. It has been found impossible to draft an article which would describe fully all the 
types of aid which a State may not furnish to a belligerent. There may be at least indirect 
types of aid which are permissible. . . . Thus ... a neutral State may afford to belligerent 
warships certain facilities in its ports . . ." (p. 137). 

24 And, of course, if it provides belligerents with loans or credits. 

25 The term "war materials" can hardly be interpreted other than in relation to the prevailing 
conception of contraband (see pp. 2.63-7). In a war in which the articles considered to constitute 
contraband have been greatly expanded, the goods a neutral state must abstain from furnishing 
belligerents will be correspondingly expanded. 

26 Thus when judged solely by the obligations imposed by Article 6 of Hague XIII, the trans- 
fer by the United States of over-age destroyers to Great Britain in 1940 was clearly a violation 
of neutral duties. The same must be said of the Act to Promote the Defense of the United States, 
approved March 11, 1941 — the so-called Lend-Lease Act. See U. S. Naval War College, Inter- 
national Law Documents, 1940, pp. 74-91, 13Z-7. Section 3 of the Lend-Lease Act declared: 

"(a) Notwithstanding the provisions of any other law, the President may, from time to 
time, when he deems it in the interest of national defense, authorize the Secretary of War, the 
Secretary of the Navy or the head of any other department or agency of the Government — 

(1) To manufacture in arsenals, factories, and shipyards under their jurisdiction, or otherwise 
procure, to the extent to which funds are made available therefor, or contracts are authorized 
from time to time by the Congress, or both, any defense article for the government of any 
country whose defense the President deems vital to the defense of the United States, (z) To 
sell, transfer title to, exchange, lease, lend, or otherwise dispose of, to any such government 
any defense article . . . (3) To test, inspect, prove, repair, outfit, recondition, or otherwise 
to place in good working order, to the extent to which funds are made available therefor, 
or contracts are authorized from time to time by the Congress, or both, any defense article for 
any such government, or to procure any or all such services by private contract. (4) To com- 
municate to any such government any defense information, pertaining to any defense article 
furnished to such government under paragraph (z) of this subsection. (5) To release for export 
any defense article disposed of in any way under this subsection to any such government." 

Section z of the Act provided that: "The term 'defense article' means (1) any weapon, 
munition, aircraft, vessel or boat; (z) any machinery, facility, tool, material, or supply necessary 
for the manufacture, production, processing, repair, servicing, or operation of any article 
described in this subsection; (3) Any component material or part of or equipment for any article 
described in this subsection; (4) Any agricultural, industrial or other commodity or article 
for defense. 

But for a justification of the Lend-Lease Act and the destroyer-base agreement on grounds 
other than those under immediate consideration, see pp. 168-9, 198^)). 

207 



altered in any way by the fact that the aid furnished by the neutral has as 
its basis a trade agreement concluded prior to the outbreak of war. On the 
other hand, the application of this neutral duty may not always be clear. 
Difficult considerations frequently arise, for example, in the attempt to de- 
termine if and when a neutral state has acted ' ' indirectly' ' to supply a bellig- 
erent with the sinews of war. Thus a neutral state may follow a policy of 
encouraging the supply of war materials to a belligerent through private 
traders, while itself abstaining from any direct action. 27 In instances such 
as these it may not be immediately apparent that the neutral state has 
acted in violation of its obligations. In fact, the growth in the power of 
the state has given rise to considerable difficulties in practice, and these 
difficulties will be dealt with shortly. Here it is sufficient to emphasize 
only the strict abstention from supplying belligerents with war materials 
that is, in principle, required of neutral states. 

This same duty of abstention serves to limit the behavior of the neutral 
state in other respects as well. As Hyde has observed, "the duty to ab- 
stain from giving aid is a broad one and covers a vast field of governmental 
activities;" for in addition to the prohibition against supplying belligerents 
with war materials of any kind the neutral is obligated, in general, "to 
abstain from placing its various governmental agencies at the disposal of a 
belligerent in such a way as to aid it directly or indirectly in the prosecution 
of the war." 28 Thus in naval warfare, the public vessels of a neutral state 
must refrain from rendering services of any kind to belligerent naval units 
at sea. They must not act as supply vessels or tenders to belligerent war- 
ships, they must not serve as transports for carrying members of a belliger- 
ent's armed forces, they must not communicate any information to belliger- 
ent warships which would assist the latter in operations against an enemy, 
and they must not interfere — in any manner — with the legitimate opera- 
tions of belligerent warships. 29 



27 During the first year of World War II the United States resorted to a policy of making war 
materials owned by this Government available to Great Britain and France through the inter- 
mediary of private firms. Old stocks of arms and ammunition were turned back by the War 
Department to private manufacturers who then sold them through the Allied Purchasing 
Agency to the British and French Governments. Similar "trade in" agreements were carried 
out with respect to aircraft. In examining these measures one observer has noted: "None of 
these transactions appear to have been carried on directly between the United States and bellig- 
erent countries or their respective agencies. Yet it is clear that the purpose of the United 
States Government . . . was to give all possible aid to Great Britain and France in the present 
war, and these transactions appear to have been carried out in pursuance of that purpose, and 
as a result of negotiation and concerted action." Lester H. Woolsey, "Government Traffic in 
Contraband," A. J. I. L., 34 (1940), p. 500. 

28 Hyde, op. cit., pp. 2.Z30-1 . 

29 There are certain acts of a humanitarian character, however, that neutral warships may 
perform and that are not regarded as aiding a belligerent. The warships of a neutral state 
may rescue ship-wrecked survivors from a belligerent warship, provided only that the neutral 
prevents the survivors from participating again in hostilities. (See pp. 112.-3). 

208 



It is one of the principal characteristics of the traditional system of 
neutrality that whereas the neutral state is under the strict obligation to 
abstain from furnishing belligerents with certain goods and services it is 
normally under no obligation to prevent its subjects from undertaking to 
perform these same acts of assistance. 30 With respect to trade in war 
materials carried on by the subjects of a neutral state Article 7 of Hague 
Convention XIII provides that a "neutral Power is not bound to prevent 
the export or transit, for the use of either belligerent, of arms, ammunition, 
or, in general, of anything which can be of use to an army or fleet." Oc- 
casionally, it is true, belligerents have questioned this absence of obligation 
on the part of the neutral state, especially when the export of war materials 
by private individuals has served to confer — in fact — a decided advantage 
upon one side. Thus, during World War I the Central Powers complained 
to the United States that the volume of traffic in arms and munitions being 
exported from this country to the Allies had reached such large proportions, 
and conferred so decided an advantage upon one side, as to raise the question 
whether the continuance of this traffic could be regarded as compatible 
with the obligations imposed upon a neutral state — and particularly with 
the obligation to observe a strict impartiality toward the belligerents. In 
rejecting the suggestion that an embargo be placed upon the export of war 
materials the United States contended that a neutral state was neither 
under an obligation to prevent private individuals from supplying war 
materials to belligerents nor under a duty to ensure that the resources com- 
ing from neutral territory would not serve to confer a decided advantage 
upon one side. It is clear that in taking this position the United States had 
the support of the established law. 31 The proper recourse open to dis- 

30 There are, however, some significant exceptions to this distinction between the obligations 
mposed upon a neutral state with respect to its own acts and the absence of obligation with 

respect to similar acts when performed by subjects of the neutral state. A neutral state is not 
only obliged to abstain itself from performing such acts as may be regarded as serving to turn 
its territory into a base of operations for belligerents; it is also obliged to prevent the commis- 
sion of acts by private individuals within its jurisdiction which may be considered as having 
a similar effect (see pp. 7.7.7-11). It is sufficient to observe here, though, that the traditional 
law does not regard the export of war materials — warships apart — from neutral territory, when 
undertaken by private individuals in the course of ordinary commercial transactions, as serving 
to turn such territory into a base of operations for belligerents. 

31 The relevant correspondence dealing with the incident in question is given in Hackworth, 
of. cit., Vol. VII, pp. 617-11. There can be little doubt as to the correctness — in strict law — 
of the American position, a conclusion reached at the time by several writers in an exhaustive 
review of the matter in A. J. I. L., 10 (1916). See W. C. Morey, "The Sale of Munitions of 
War," pp. 476ff.;C. N. Gregory, "Neutrality and the Sale of Arms," pp. 543 ff.; and J. W. 
Garner, "The Sale and Exportation of Arms and Munitions of War to Belligerents," pp. 749 ff. 
At the same time, it was equally clear not only that the scale of the traffic in arms and munitions 
to the Allies represented an unprecedented event but that the traffic itself was very likely a 
decisive factor in staving off Allied defeat. See, generally, Alice M. Morrissey, The American 
Defence of Neutral Rights 1914-191J (1939). It is of interest to note that the position taken by the 
Central Powers did not rest directly upon an advocacy of a "principle of equalization" but 

209 



advantaged belligerents is to undertake repressive measures against the 
subjects of a neutral state engaged in furnishing assistance to an enemy, 
and the rules relating to contraband, blockade and unneutral service, as 
well as the rules governing visit, search and seizure, prescribe lawful means 
belligerents may use to accomplish this end. In turn, the neutral state 
must acquiesce in the repressive measures a belligerent is permitted by law 
to take at sea against the subjects of a neutral state engaged in assisting an 
enemy — whether by supplying him with war materials or by furnishing 
him with other forms of assistance. 

But although a neutral state is under no obligation to do so it may place 
restrictions upon, or forbid entirely, both the export from and transit 
through its territory of war materials intended for belligerents. The con- 
servation of resources or the more effective preservation of neutral status 
may further lead non-participants to extend restrictive measures to private 
trade in goods other than war materials, and to loans or credits as well. 32 
Indeed, there is nothing to prevent a neutral state from undertaking to 
prevent all kinds of commercial intercourse between its subjects and bellig- 
erent states, and provided only that such restrictions are applied in an 
impartial manner the legislation enacted by neutral states to this purpose 
raises considerations of policy though not of law. 33 

upon the fact — noted in the Austro-Hungarian note of June 2.9, 1915 — "that the economic life 
of the United States had been made serviceable to the greatest extent [to the Allies] by the 
creation of new and the enlargement of existing concerns for the manufacture and exportation 
of war requisites and thus, so to say, been militarized, if it be permitted to use here this much- 
misused word ... in the concentration of so many forces to the one end . . . lies a fait nouveau 
which weakens reference to supposed precedents in other wars. 

32 In the past, a number of states when neutral have enacted such restrictions, and practice in 
this respect has been reviewed in Harvard Draft Convention On The Rights and Duties of Neutral 
States in Naval and Aerial War, op. cit., pp. x8i ff. 

33 The neutrality legislation enacted by the Congress of the United States during the years 
1935-39 undoubtedly represents the most significant recent example of a neutral state imposing 
restrictions upon its citizens respecting commercial intercourse with belligerents that were far 
in excess of the requirements laid down by international law. The Neutrality Act of May 1, 
1937 declared in Section 1 that: "Whenever the President shall find that there exists a state of 
war between, or among, two or more sovereign states, the President shall proclaim such fact, 
and it shall thereafter be unlawful to export or attempt to export, or cause to be exported arms, 
ammunition, or implements of war from any place in the United States to any belligerent state 
named in such proclamation or to any neutral state for transshipment to, or for the use of, any 
such belligerent state." The 1937 Act provided further, in Section 2., that no other materials 
listed in a presidential proclamation could be exported to belligerent states save in foreign 
vessels and after American citizens had yielded all right, title or interest. Loans and credits to 
belligerent governments were forbidden. The 1937 Act also forbade United States citizens to 
travel on belligerent merchantmen or aircraft and prohibited the arming of American merchant- 
men. Upon the outbreak of war in September 1939, the embargo on arms, ammunition, and 
implements of war was put into effect by Presidential Proclamation of September 5, 1939 (Sec- 
tion 2. of the 1937 Act having lapsed May 1, 1939). On November 4, 1939 a new joint resolution 
of Congress was approved which repealed earlier legislation, and particularly the arms embargo. 

210 



It is evident that the basic distinction drawn by the traditional law 
between the obligations of abstention imposed upon a neutral state with 
respect to its own acts and the normal absence of obligation on the part of 
the neutral state to prevent its subjects from performing similar acts rests 
upon the possibility of maintaining a clear separation between the public 
activities of the neutral state and the private activities undertaken by 
subjects of the neutral state. Recent wars have made it abundantly clear, 
however, that the continued possibility of maintaining this separation in 
practice has become very difficult. The extent to which states now exercise 
either direct ownership or indirect control over economic activities formerly 
regarded as outside their proper sphere of activity may — and does — vary 
considerably. Nevertheless, this variation has been significantly narrowed 
in time of war. Where a neutral state does not nationalize its foreign 
trade, control over exports through a system of licensing and similar 
measures no longer allows such trade to be characterized as "private" in 
any but the most nominal sense of that term. 

It is, in fact, hardly possible to reconcile the conditions that generally 
prevailed during the two World Wars with the conditions that are plainly 
assumed by the traditional law. The trading activities of neutral subjects 
were no longer determined by the decisions of private neutral traders, a 
fact that is readily apparent where the state has nationalized foreign trade. 
Yet it is only slightly less apparent where the neutral state exercises de- 
cisive control in determining the kinds and quantities of goods to be 
allowed for export, as well as the destination of such exports. During 
World War II, the practices initiated in an earlier war were once again 
adopted by neutral states, subject only to expansion and further refinement. 
Not only did most neutral states enact stringent export (and import) con- 
trols, many of them concluded formal trade agreements with belligerents 
whose purpose was to set limitations upon the quantity of goods neutrals 

According to the Act of November 1939, it was made unlawful for American vessels to carry- 
either passengers or articles to any belligerent state named in a presidential proclamation. 
Among other features, the Act required the complete transfer of title (the so-called "cash and 
carry" provision) to all goods prior to export. It also authorized the President to declare 
combat areas ('war zones') within which American citizens and American vessels could not 
enter except under specially prescribed regulations. Other provisions of earlier acts — e. g., the 
prohibitions against loans and credits, travel by American citizens on belligerent merchantmen, 
and arming of American merchantmen — were re-enacted. On November 17, 1941 sections 2. 
(governing commerce with belligerents), 3 (dealing with combat areas) and 6 (forbidding the 
arming of American merchantmen) were repealed by joint resolution of Congress. — For texts 
of relevant Acts, Presidential Proclamations and Regulations, see U. S. Naval War College, Inter- 
national Law Situations, 1939, pp. 101-54, and International Law Documents, 1941, pp. 46-9. For 
a review of questions arising over the application of the Act of November 4, 1939, see Hack- 
worth, op. cit., Vol. VII, pp. 643-8. A general survey of the neutrality legislation of the 
period is given by F. Deak, "The United States Neutrality Acts," International Conciliation, No. 
358, March 1940. 

399334—57— — 15 211 



would permit to be exported to states with which the belligerent party 
to the agreement was at war. 34 

Nor has the transformation in the economic functions undertaken by the 
state affected only the status and application of the rules governing neutral 
trade in war materials with belligerents. In naval warfare this trans- 
formation may also affect the rules governing the supply and repair of 
belligerent warships in neutral ports. Subject to certain restrictions 35 the 
traditional law permits belligerent warships to obtain supplies and repairs 
in neutral ports by recourse to the market. However, this law does not 
permit the neutral state, or its agencies, to provide warships with such 
supplies and repairs as the warship is otherwise permitted to obtain in 
neutral ports and the neutral state is not obligated to prevent. 36 But where 
fuel supplies and the facilities of ports are either owned or controlled by 
the neutral state a strict interpretation of neutral obligations would appear 
to forbid altogether the granting of fuel and repairs to belligerent war- 
ships. 37 

34 Indeed, the regulation of so-called "private" neutral trade became almost exclusively a 
matter to be determined between the belligerent and the neutral state. Medlicott (op. cit. t 
pp. 139) has described in considerable detail the work of the British Ministry of Economic 
Warfare in concluding the "war trade agreements" with neutral states. "The basic aim of 
these complicated negotiations," Medlicott writes, "was to ensure that the neutrals would 
prohibit altogether the re-export to Germany of goods reaching them through the Allied 
controls, and would limit the sale to Germany of other goods to 'normal' pre-war figures. In 
return the British Government agreed in each case to facilitate the passage through the controls 
of goods covered by the agreements, and to refrain from demanding individual guarantees 
against re-exports" (p. 55). In the draft war-trade agreements instructions sent out in Septem- 
ber 1935, to all British missions in neutral states it was stated that: "Its (i. e., the proposed 
war trade agreements) underlying principle is . . . that, in return for certain undertakings as 
to the limitation and control of . . . trade with the enemy, His Majesty's government will 
undertake to permit and so far as possible to facilitate the importation by . . .of commodities 
essential for her domestic consumption" (p. 664). 

35 See pp. 140-4. 

36 Thus the United States Neutrality (General) Proclamation of September 5, 1939 declared: 
"No agency of the United States Government shall, directly or indirectly, provide supplies 
nor effect repairs to a belligerent ship of war." This provision merely states the neutral's 
obligation under the traditional law. 

37 In the case of The Attilio Regolo and Other Vessels (Annual Digest of Public International Law 
Cases (1947), Case No. 137, pp. 319-14), an arbitration between the United States, Great Britain 
and Italy on the one hand and Spain on the other, the Arbitrator was called upon to decide 
whether "the provisions of Article 19 of the Hague Convention (XIII) of 1907 entail an obliga- 
tion on the neutral State to give active assistance in ensuring supplies of fuel to belligerent 
warships anchored in its waters, or, on the other hand, does refueling represent a right of the 
said ships, their inability to exercise which in good time does not preclude a strict application 
of the twenty-four hours' rule." The Arbitrator held that Article 19 "does not lay on the 
neutral State any specific obligation to assist actively in providing supplies of fuel," but that 
fueling does represent a "right which the belligerent warship may exercise by recourse to the 
market. ' ' The Arbitrator went on to point out : "In no sense — grammatical, logical or juridical — 
does the Article (19 of Hague XIII) under examination lay on the neutral State the duty of 
actively assisting in making supplies available. Such duty, we may add, is inconsistent with 

212 



It may be that revision of the law of neutrality to permit neutral states 
themselves to supply fuel to belligerent warships or to grant the latter use 
of state-owned port facilities would raise no "insurmountable difficulty," 
that "it is probable that even without express revision the established law 
of neutrality could be applied by way of a reasonable interpretation of its 
basic provisions in the light of new conditions." 38 It can be contended that 
the principal consideration is that belligerent warships ought not to make 
use of neutral ports in excess of the restrictions laid down by Hague Con- 
vention XIII (1907), and this may be ensured regardless of the fact that the 
limited assistance made available to warships in neutral ports is obtained 
directly from the neutral state itself rather than by recourse to the market. 39 

Even so, the major problem remains, that is of applying to present 
conditions the rule forbidding neutral states to supply belligerents in any 
manner, directly or indirectly, with war materials. In those states where 
foreign trade has been nationalized it seems clear that if the traditional law 
retains its validity the supply of war materials of any kind must be con- 
sidered as a departure from the duties imposed upon a neutral state. 40 Nor 
is this conclusion subject to qualification either by the claim that this 
situation was not contemplated when the traditional law was established 41 

the conceptions of the State, prevailing in 1907, as remote from pursuits of a commercial nature 
and as being exclusively a constitutional organism whose specific duty as a neutral, under the 
system we are now examining, was merely to exercise control and supervision in order to 
prevent belligerent warships received in its waters from using the latter as a base of operations 
and thus compromising the neutrality of the State granting them access." 

38 Lauterpacht, "The Problem of the Revision of the Law of War," p. 377. 

39 On the other hand, the dissatisfaction long felt in many quarters over the "limited assist- 
ance" neutrals may grant belligerent warships under Hague XIII is not likely to be attenuated 
by this possible revision of the law in order to permit the neutral state to supply fuel and carry 
out repairs. If anything, it would be increased — and not unreasonably so. 

40 ". . . a neutral state which permits its publicly-owned vessels to carry cargo which would 
be subject to confiscation if carried in a privately-owned vessel, or whose publicly-owned 
vessels are guilty of any form of conduct which would render them liable to condemnation if 
they were privately-owned vessels, would itself be guilty of disregarding pro tanto the law of 
neutrality. . . ." S. W. D. Rowson, op. cit., p. 178. For further expressions to the same 
effect, see Lawrence Preuss, "Some Effects of Governmental Controls On Neutral Duties," 
Proceedings, American Society of International Law, 31 (1937), pp. 108-19, and Harvard Draft 
Convention on Rights and Duties of Neutral States in Naval and Aerial War, op. cit., pp. Z38-44. 
Nor is the conclusion stated above denied by those writers who nevertheless contend that 
retention of the traditional law serves to penalize states adopting socialist economies, e. g., 
W. Friedmann, "The Growth of State Control Over the Individual, and Its Effect Upon the 
Rules of International State Responsibility," B. Y. I. L., 19 (1938), pp. 130 ff. 

41 This point has been frequently made by writers and is, in any event, not a matter of dispute. 
During World War II the application of the rule forbidding the supply of war materials by 
neutral states may be interpreted, in view of the extension of the notion of contraband, as 
forbidding almost all trade between the Soviet Union (while still a neutral) and belligerent 
states. That the Soviet Union did not adhere in its behavior to this prohibition is a matter 
of public record. It may be argued that this example of the Soviet Union during the years 
1939-41 shows the futility of attempting to apply the traditional law to a major neutral state 

213 



(and, obviously, it was not) or by the attempt to differentiate between the 
"political" as opposed to the "commercial" character of the transactions 
carried out by the neutral state. 42 

No clear conclusion can be drawn, however, with respect to the possible 
liability of state-owned neutral vessels and cargoes to the law of prize. 
Although it has been contended that the • ' vessels (other than men-of-war) 
and cargoes of such States are subject to the ordinary incidents of the law 
of blockade and contraband and of other belligerent rights," 43 practice to 
date does not as yet afford sufficient grounds for endorsing this claim. It 
is by no means certain that belligerents have even a right to visit and 
search the publicly owned vessels of a neutral which are engaged in com- 
mercial activities, let alone the right to seize and to condemn such vessels 
and their cargo in accordance with the rules relating to contraband and 
blockade. 44 

that has completely collectivized its economy. Nevertheless, in the absence of wider agree- 
ment among states that this aspect of the traditional law should be abandoned, it can only 
be assumed that the rule forbidding neutral states to supply belligerents with war materials 
remains valid. 

42 It has been suggested that if "the nature of the deal, whether political or commercial, and 
not the fact of governmental ownership or control, is to be the test for determining legal re- 
sponsibility, and if it is political favoritism and political assistance rather than governmental 
supervision as such which gives taint to the transaction, then what is to be looked for in this 
quest for a criterion as to private capacity is the amount or extent of political bias or influence 
manifest in any given arrangements between a belligerent government and a corporation or 
agency owned or controlled by a neutral state . " ' 'Neutral Duties and State Control of Enterprise, 
U. S. Naval War College, International Law Situations, 1939, p. 10. It may be doubted 
whether this suggested differentiation between the "political" and the "economic" acts of 
the neutral state is at all feasible, dependent as it must be upon a "search into the motives 
and into the details of each particular act" (p. 11). In any event, it has no basis in the tradi- 
tional law, which is not concerned with whether the act of supplying a belligerent state with 
assistance for the prosecution of war has an "economic" or "political" motivation. Finally, 
it may be observed that little support for this suggestion can be found by the appeal to the prin- 
ciple of impartiality, since the latter too is concerned with the acts of a neutral state, not with 
its motives. 

43 Oppenheim-Lauterpacht, op. cit., p. 657. 

44 The actual practice of states during World War II is scarcely conclusive even as to the right 
of visit and search. A number of writers have made much over the alleged insistence on the 
part of Great Britain during the early stages of World War II to subject Soviet state-owned 
vessels engaged in commercial activities to the same measures of control which privately owned 
neutral vessels are liable. It is true that on several occasions British warships exercised visit 
and search over Soviet vessels. The British Government, however, made no clear reply to the 
protests of the Soviet Government that state-owned merchant ships were exempt from the 
operation of belligerent rights. The matter was never put to a test since the Soviet Govern- 
ment thereafter avoided areas in which their vessels would possibly -be subject to the British 
contraband control system. The incidents are recounted in some detail by Medlicott, op. cit.', 
pp. 318-zo. — There are, on the other hand, certain indications in prize rules and manuals of a 
tendency to assimilate neutral state-owned vessels engaged in commercial activities to the 
position of privately owned neutral vessels. See section 500b Law of Naval Warfare. Note 
should also be taken of the German Prize Law Code of 1939, which provided in Article i : 

214 



Undue concentration upon the criterion of state-ownership, however, 
ought not to lead to a neglect of the far more difficult considerations in- 
volved in applying the traditional law to neutral trade which, though not 
state-owned, is state-controlled. A strict application of this law would 
appear equally to forbid neutral trade in war materials when such trade is 
controlled and directed by the neutral state. 45 And in view of the near 
universal practices of neutral states in recent wars there must remain, on 
this consideration, only a negligible amount of neutral trade whose char- 
acter does not involve the responsibility of the neutral state. 46 

In an admirable analysis of the numerous problems imposed by the break- 
down in practice of the neutral state-neutral trader distinction Julius Stone 
has proposed the following "two main lines of legal reform" available to 
states : 

One would assimilate the legal position of the trading State to 
the private trader, permitting the State to trade subject to bel- 
ligerent controls of contraband, blockade and the like. The other 
would assimilate the private trader's legal position to that of the 
State, forbidding him and forbidding his State to permit him to 
engage in the affected trade. Neither line has any a -priori validity. 
Which should be adopted is a matter of legislative policy. . . . 
Between the two alternatives offering, therefore, the Writer 



'Prize Law covers the authority to visit and search enemy and neutral ships as well as to deal 
with these ships and goods carried on them according to the following provisions. Warships 
and other public vessels which are designed or used exclusively for purposes of public adminis- 
tration and not for trade purposes are not subject to prize law." To date, however, these and 
similar manifestations have yet to stand the test of practical application. And it is difficult 
to avoid the conclusion of Rowson (op. cit., p. 177), who declares that with respect to the 
liability of neutral state-owned merchant vessels the law is still "in its infancy." 

45 And without regard to whether such control is exercised through export controls and 
licensing measures or by the state's creation of trading organizations endowed with a "private 
character." The latter measure may furnish a means for permitting belligerents to exercise 
those controls that have long been exercised over private neutral traders, but it cannot do away 
with the fact that decisive control would still be exercised by the neutral state. 

48 The decisive point, therefore, is no longer that undue concentration upon the criterion of 
state ownership leads to conclusions that discriminate against states resorting to nationaliza- 
tion. Instead, it is that concentration upon the sole factor of state ownership neglects the 
more important — since far more widespread — practices of state control which fall short of 
ownership, and that these practices of state control constitute the most sig- 
nificant factor in subverting the clear intent of the traditional law. This is the burden of the 
excellent remarks of Julius Stone (op. cit., pp. 410-1) in criticism of the position that "it is 
impossible to maintain one set of rules for countries organized on the basis of private enterprise 
and another for countries where the production of and trade in certain articles is in the hands 
of the State." Oppenheim-Lauterpacht, op. cit., pp. 657-8. Professor Stone's reply is that in 
view of the extensive controls over trade now exercised by nearly all neutral states the insistence 
upon looking only at the criterion of state ownership has precisely this result — to lead to two 
sets of rules. 



215 



accepts the former, namely, that trading activity of neutral Gov- 
ernments with belligerents should be assimilated to private trading 
in both respects. First, that the duty of the neutral Government 
not to supply arms, munitions, or to grant loans should be abol- 
ished. Second, that the ships, and cargoes, and other instru- 
mentalities of the neutral Government employed in such trade 
should be subject to the ordinary penalties for contraband carriage, 
blockade breach, and the like, and should not enjoy (while 
involved in such trade) the immunities ordinarily enjoyed by 
State owned ships and property. 47 

These suggestions for legal reform represent a clear attempt to close the 
ever widening gap that exists between the behavior prescribed by the 
traditional rules and the actual practices of neutral states in the two World 
Wars. Even further, they recognize that it is unrealistic to consider the 
conditions that have brought about the present decline of the neutral 
state — neutral trader distinction as merely transient phenomena. Never- 
theless, the proposal that the position of the neutral state should now be 
assimilated, in matters of trade, to the position traditionally held by the 
private neutral trader is one involving substantial difficulty. 48 

It is of course true that neutral trade has always been a significant factor 
in warfare at sea, and belligerents have always sought to go as far as possible 
in cutting off this trade with the enemy. But it is hardly necessary to 
observe that the ever present belligerent desire to cut off neutral trade with 
an enemy is — for reasons already noted — far greater today than in an earlier 
period. In view of the increased importance of the economic arm in the 
conduct of modern war the proposal that the neutral state be assimilated 
in matters of trade to the position of the private neutral trader might well 
have the effect of conferring upon neutrals the legal possibility of exercising 
a decisive influence upon the outcome of a conflict. 

Nor should it be overlooked that private neutral trade, being motivated 
by considerations of gain and not by political considerations, was generally 



47 Stone, op. cit., pp. 412.-3. 

48 It should be made clear that the above discussion is independent of, and does not prejudice, 
any duties and rights of nonparticipants resulting from the changed legal position of war (see 
pp. 165 ff). With respect to the Charter of the United Nations it will be readily apparent that 
the effective operation of the collective security system established by that instrument would 
render any further consideration of the present problem of little more than nominal value. 
And even if the Security Council cannot effectively exercise the functions conferred upon it by 
the Charter, it may nevertheless be contended that member states have a right to assist a state 
made the victim of an armed attack and a duty to refrain from assisting the attacker. From 
this point of view the proposal to abandon the neutral state's duties of abstention would not 
be in accord with the obligation to refrain from assisting an aggressor. On the other hand, 
the alternative proposal of placing an embargo upon all neutral trade (public and private) with 
belligerents would not be in accord with the presumed right of third states to assist the victim 
of an unlawful resort to war. 

216 



without organization and direction. In this sense it was politically 
indifferent, and this political indifference was not substantially affected by 
reason of the fact that the neutral state might take up and press the cause 
of the private trader against belligerents. All this must change once the 
state is openly allowed to take over the position occupied by the private 
trader. Presumably, the neutral state would be under no obligation to 
act impartially in supplying belligerents with war materials, and, in any 
event, it is difficult to see how the principle of impartiality could be applied 
effectively in this instance. The neutral state would be able to organize 
and direct its assistance in a manner that would have been impossible for 
private traders. It does not appear realistic to expect that the neutral state 
would determine its trading policy in a non-political vacuum. On the 
contrary, the expectation must be that political considerations will prevail 
over considerations of economic gain. 

In a word, the proposal that the neutral state's position be assimilated 
to that of the private neutral trader would, if accepted, result in the neutral 
state's interference in the conduct of a war just short of active participation 
in hostilities. Given the transcendent importance of the economic factor 
it would normally prove to be only a very short step to such active partici- 
pation. 49 If past experience is to prove of any value it would appear to 
indicate that if neutrality is to be preserved at all it will be done only 
under the condition that it does not serve to confer a substantial — let alone 
a decisive — advantage upon either belligerent. This consideration may 
imply the desirability of forbidding all neutral trade in war materials with 
belligerents. The neutral state-neutral trader distinction has always been 
something of an anomaly, understandable in the context of the particular 
historic conditions in which it arose. These conditions obtain today 
only to a very limited extent. With their disappearance the retention of 
the rules which developed out of them lose further justification. Yet in 
altering these rules the traditional system of neutrality would seem best 
preserved — assuming such preservation to be the central purpose of legal 
reform — not by suggesting that an otherwise anomalous practice now be 
transformed into an even more general situation, but rather by forbidding 
all neutral trade with belligerents. The economic hardships complete 
abstention might impose upon the economy of a neutral state could un- 



49 Of course, given a preponderance of belligerent power such trade would only rarely be 
tolerated. The proposal would work, if at all, only in a local war. Yet even here its results 
would probably prove undesirable, if it is assumed that the objective would be to keep the war 
from spreading. For the proposal under discussion would most likely have the contrary effect. 
Instead of isolating a conflict it would constitute an open invitation for other states to fish in 
troubled waters, thus running the risk of expanding the conflict. No doubt states have done 
just this, even under the rules laid down by the traditional law, and will continue to do so. 
But there seems little point in providing them with the legal justification for doing so. 



217 



doubtedly be considerable. They are certainly no greater, however, than 
the hardships imposed by participation in modern war. 50 

All this is mere speculation, though. From the point of view of the 
present law the traditional rules based upon the distinction drawn between 
neutral state and neutral trader remain valid, though marked by ever in- 
creasing difficulty in their application and — in all probability — a corres- 
ponding decline in their effectiveness. 

E. RESTRICTIONS ON THE USE OF NEUTRAL PORTS AND 
TERRITORIAL WATERS; 51 NEUTRAL DUTIES OF PREVENTION 

A neutral state is obliged not only to abstain itself from the performance 
of certain acts; it is further obliged to prevent the commission of certain 

50 Admittedly, the proposal to place upon non-participants the duty to prevent all com- 
mercial intercourse with belligerents is also beset with difficulty. On balance, however, these 
difficulties would appear less formidable than the difficulties attendant upon the suggested 
assimilation of the neutral state to the position heretofore held by the neutral trader. The 
argument that the complete severance of trade would extend considerably the neutral's pre- 
ventive duties is quite true, though not a compelling objection. Indeed, given the pervasive 
controls already exercised by states — when neutral — over exports, the extension involved 
would affect the scope of the neutral's duty of abstention far more than creating new duties 
of prevention. Undoubtedly, the more serious objection is the economic hardship complete 
abstention might impose upon a neutral state's economy. Yet it hardly seems hazardous to 
surmise that economic considerations generally have been far less influential in shaping neutral 
policies than have been considerations of a distinctly political character, and this despite 
Professor Stone's (op. cit. y p. 413) somewhat extravagant assertion that it is "fantastic" to 
assume that non-participants would "commit economic self-immolation for the sake of the 
law of neutrality." On the contrary, it is submitted that recent experience points far more 
clearly to the lesson that states are willing to suffer economic hardships to preserve neutrality, 
if the preservation of neutral status is considered to be politically desirable. For precisely the same 
reasons — i. e., political — neutral states have intervened in recent hostilities by directing eco- 
nomic aid to the side with whose interests they have become identified. 

It may be relevant to add that the foregoing remarks are not designed to suggest either the 
widsom or the folly — from a political standpoint — of self-imposed neutral policies of pre- 
venting all trade with belligerents. But it does seem clear that in the period accompanying 
and directly following the collapse of American neutrality during World War II many observers 
drew conclusions whose generality was hardly warranted by the special experience on which 
they were based. It is one thing to assert that in a major conflict the attempt on the part of a 
third state to isolate itself, when its vital interests are directly involved in the conflict, must 
be foredoomed to failure. It is quite another thing to insist that failure must attend any attempts 
to isolate the combatants in a limited war where the interests of third states may not be 
directly involved — or, at least, where the interests of third states in the outcome of a conflict 
is less than their desire to prevent the conflict from spreading. And it will be apparent that 
it is precisely in a limited war, where the possibilities for the preservation of neutral status 
will normally be most favorable, that the economic hardships suffered by the prohibition against 
trade with the combatants will be the least severe. All this may be viewed as pointing to the 
conclusion — by now, almost a truism — that neutrality will prove feasible only where war is 
limited in the number, and power, of the participants. Yet the decisive point is that it may 
prove feasible in just such situations, and hence suggestions for legal reform of the traditional 
system must concentrate — to be realistic — upon this possible contingency. 

61 See, generally, Law of Naval Warfare, section 440 and notes thereto. 

218 



acts by anyone within its jurisdiction. Those acts a neutral state is obli- 
gated to prevent may be performed either by belligerents or by private 
individuals. In naval warfare attention is directed to the acts a neutral 
must forbid in its ports and territorial waters. The most authoritative 
source for an inquiry into the rules restricting the use of neutral ports and 
territorial waters remains Hague Convention XIII (1907). 52 

In defining the scope of a neutral's duties with respect to its waters and 
ports Hague Convention XIII does not purport to indicate the acts a 
neutral state may forbid but the acts it must forbid. There is nothing to 
prevent a neutral from placing restrictions upon the use of its waters and 
ports which are in excess of the requirements laid down by international 
law, and in practice many states when neutral do exercise their right to 
impose restrictions beyond those required by law. In so doing the neutral 
state is only under the obligation to see that its regulations are applied 
impartially toward all belligerents. 63 

1. Belligerent Acts of Hostility in Neutral Waters 

Article 2. of Hague Convention XIII declares that: "Any act of hostility, 
including capture and the exercise of the right of search, committed by 
belligerent war-ships in the territorial waters of a neutral Power, consti- 
tutes a violation of neutrality and is strictly forbidden." In principle, the 
rule enjoining belligerent respect for the inviolability of neutral waters 
appears quite plain. In practice, however, certain questions have arisen 
that concern the precise scope of the belligerent's duty of abstention. 

It is clear, to begin with, that this belligerent duty toward the neutral 
state is not without limitation. A belligerent is not obligated to refrain 
under all circumstances from taking hostile measures against the naval forces 
of an enemy located in neutral waters. In the event that the forces of one 
belligerent violate neutral waters (or ports) and the neutral state willfully 
permits such violation it cannot complain if the other belligerent — as an 
extreme measure — attacks his enemy while still in the waters of the neutral 
state. The neutral state has not only the right to prevent the misuse of its 
waters and ports but also a duty to take adequate measures of prevention. 
This neutral duty is owed to the belligerent that has otherwise respected 
the rights of the neutral state and that will be placed at a disadvantage in 

62 Though never ratified by Great Britain (nor, for that matter, by Russia) and not technically 
binding in either World War, the provisions of Hague Convention XIII (1907), have neverthe- 
less been considered — on the whole — as declaratory of the customary rules restricting bellig- 
erent use of neutral ports and waters. However, there are certain provisions of the Convention 
that have not received the acceptance of numerous naval powers, and these provisions will 
be noted in the following pages. It should also be observed that Hague XIII does not deal with 
the rules concerning belligerent rights with respect to neutral commerce at sea. Even in relation 
to neutral waters and ports the Convention is not to be considered as exhaustive, which is 
one reason for Article 1 obligating belligerents "to respect the sovereign rights of neutral 
Powers and to abstain, in neutral territory or neutral waters, from any act which would, if 
knowingly permitted, constitute a violation of neutrality." 

63 Hague XIII, Article 9. 

219 



war by the unlawful use made of neutral waters and ports by an enemy. In 
allowing the forces of one belligerent to misuse its waters and ports the 
neutral state thereby violates its duty toward the other belligerent, and 
the acts of hostility that the offended belligerent may take against the 
forces of his enemy in neutral waters may be interpreted as permitted 
measures of reprisal against the delinquent neutral. 54 

The scope of the belligerent's obligation to abstain from committing 
hostile acts in neutral waters must therefore depend, in large measure, 
upon the nature and scope of the neutral's obligation to prevent the unlaw- 
ful use by belligerents of its waters and ports. In naval warfare the gen- 
erally accepted standard the neutral is obliged to meet in fulfilling its 
duties — and certainly the standard imposed by Hague XIII — is that it use 
the "means at its disposal." 55 But the fact that a neutral fulfills its duty 
so long as it exercises such surveillance as the means at its disposal allow 
to prevent violations of its waters and ports need not mean, however, that 
the belligerent's obligation of abstention is unqualified by the effectiveness 
of the preventive measures taken by the neutral. 

It is evident that in the event the neutral state cannot effectively enforce 
its rights against an offending belligerent the ensuing situation may lead 
to one of considerable difficulty. Belligerent warships may be threatened 
with attack by an enemy while in neutral waters, and the shore state may 
be unable to exercise adequate measures of prevention. The forces of a 
belligerent may persistently violate the waters of a neutral state to the 
grave disadvantage of an enemy that has heretofore respected neutral 
waters. In these, and other, circumstances the neutral state, while using 
the means at its disposal, may be wholly unable to enforce its rights effec- 
tively. Must the belligerent whose interests suffer as a result of an enemy's 
violation of neutral waters nevertheless abstain from taking hostile 
measures in neutral waters against his adversary? 

54 These are measures of reprisal against the neutral, not against the belligerent. In misusing 
neutral waters the belligerent has violated no right of its enemy. 

55 Article Z5 of Hague XIII declares: "A neutral Power is bound to exercise such surveillance 
as the means at its disposal allow to prevent any violation of the provisions of the above Articles 
in its ports or roadsteads, or in its waters. — Article 2.6 of the 19x8 Habana Convention on 
Maritime Neutrality provides a substantially similar formulation in stating: "Neutral States 
are bound to exert all the vigilance within their power in order to prevent in their ports or 
territorial waters any violation of the foregoing provisions." — In the Harvard Draft Convention 
On the Rights and Duties of Neutral States in Naval and Aerial War (op. cit., p. 2.45) the same con- 
cept of the scope of the neutral's duty is expressed. Article 6 of the Draft Convention states: 
"A neutral state shall use the means at its disposal to prevent within its territory the com- 
mission of any act the toleration of which would constitute a non-fulfillment of its neutral 
duty; the use of force for this purpose shall not be regarded as an unfriendly act." 

The comment to Article 6 declares that the article expresses "the general standard by which 
a neutral State's fulfillment of its neutral duties is to be measured. A neutral state is not an 
insurer of the fulfillment of its neutral duties. It is obligated merely to use the 'means at its 
disposal' to secure the fulfillment of its duties" (p. 147). 

220 



It can hardly be said that the dilemma posed by the situation of the weak 
neutral has been clearly and satisfactorily resolved even today. 56 The 
relatively few incidents that appear to have a bearing upon this problem 
are not entirely free from ambiguity, and their significance as possible 
precedents ought not to be overestimated. 57 Despite this dearth of prece- 
dents it is the opinion of a number of publicists that if the neutral state is 



56 Equally difficult considerations arise as a result of a neutral's inability to prevent a bellig- 
erent from shutting off the neutral state's legitimate intercourse — particularly trade — with an 
enemy (see pp. Z52.-8). 

67 One such incident occurred during the Russo-Japanese War when a Russian destroyer, the 
Peshitelni, which had taken refuge in a Chinese port, was seized and towed off by Japanese 
warships. Japan, in justifying the action, maintained that the Chinese authorities had not 
taken the necessary measures toward disarming the vessel and ensuring that it would take no 
further part in the war. The incident is not entirely clear though, since at the time of the 
Japanese action the Peshitelni had ostensibly been interned (two days earlier), and there were 
Chinese naval vessels in the port (Chifu) that could have ensured effective internment. In 
part, it seems that the Japanese action was taken as a result of previous incidents in which 
Chinese waters had been violated by Russian naval forces and China either would not or could 
not resist these transgressions. 

The most frequently cited incident arising out of World War I is the case of the Dresden. 
The incident is summarized in the following passage : 

"On March 9, 1915 the German cruiser Dresden arrived in Cumberland Bay in the Chilean 
Juan Fernandez Islands, cast anchor, and asked permission to remain eight days to repair her 
engines. The maritime governor of the port refused to grant the request, considering it un- 
founded, and ordered the vessel to leave within 2.4 hours or be subject to internment. At the 
end of the period he notified the captain of the vessel that the penalty of internment had been 
incurred. On March 14 a British naval squadron arrived and opened fire on the Dresden while 
she lay at anchor some 500 meters from shore. The Dresden raised a flag of truce and sent an 
officer to inform the British squadron that she was in neutral waters. The British squadron 
ordered the Dresden to surrender or be destroyed; the captain of the Dresden thereupon blew up 
his own ship, and the crew made their way ashore." Hackworth, op. cit., Vol. VII, p. 370. 
The Chilean government protested the action of the British squadron, maintaining that the 
internment of the Dresden was as effective as the circumstances would permit, and contended 
that, in any event, the British naval squadron could have prevented, by close watch, the possi- 
bility of the Dresden escaping to sea and once again attacking British commerce. In its reply 
the British Government stated that it was prepared to offer a "full and ample apology" to the 
Chilean Government for the action. It added, however, that if the Chilean authorities could 
not prevent the Dresden from abusing Chilean waters and properly intern her, these circum- 
stances would "explain the action taken by the British ship." It is difficult to determine, 
therefore, whether the offer of an apology by Great Britain was intended as an unqualified 
apology for the action of the British squadron or whether it was offered because the British 
Government was not certain that under the circumstances the Chilean authorities might have 
been able to take the measures necessary to intern the Dresden. 

The incident of the Altmark (see pp. 136-9) during World War II, though also frequently 
cited by writers, is of doubtful relevance. In the Altmark incident there appeared little doubt 
that Norway had the "means at its disposal" to enforce its neutrality. Nor did the British 
Government attempt to justify the measures of hostility it finally resorted to within Norwegian 
waters on the grounds that Norway was unable to enforce her rights. On the contrary, the 
British contention was that Norway had the means but was unwilling to use these means. 
The British action, if justifiable, must be interpreted then as a reprisal against Norway for the 

221 



unable to enforce its rights against one belligerent making unlawful use of 
its waters the other belligerent may — as an extreme measure — resort to 
hostile action against the forces of its enemy, though in neutral waters. 68 
If this opinion is correct, as it is believed to be, then a belligerent's duty to 
abstain from committing acts of hostility in neutral waters must be limited 
not only by the willingness but also by the ability of the neutral to enforce 
its rights effectively. 59 At the same time, there is general agreement that 
where a neutral state is employing the means at its disposal (though ineffec- 
tively) to prevent belligerent violations of its waters, a belligerent ought 
not to take hostile measures against an enemy making unlawful use of 
these waters except when so required for reasons of self-preservation or — 



latter's failure to observe her duties toward Great Britain. Interestingly enough, however, 
most of the writers approving the British action in the Altmark incident refer to the measure 
as one of "self help" rather than of reprisal. 

More relevant in this connection is the British and French resort to the mining of Norwegian 
territorial waters in April 1940, on the eve of the German invasion of Norway. On this occa- 
sion the British and French Governments, alleging the persistent abuse by Germany of Nor- 
wegian territorial waters, declared that: "Whatever may be the actual policy which the Nor- 
wegian Government, by German threats and pressures, are compelled to follow, the Allied 
Governments can no longer afford to acquiesce in the present state of affairs by which Germany 
obtains resources vital to her prosecution of the war, and obtains from Norway facilities which 
place the Allies at a dangerous disadvantage ..." cited in Hackworth, op. cit., Vol. VII, 
p. 148. The implication was clear that the mining of Norwegian waters was a measure of 
"self help" justified in view of Norway's inability to prevent German misuse of her waters. 

68 Thus Hyde (op. cit., pp. 1337-8) has stated that the "obligation resting upon the belligerent 
with respect to the neutral is not of unlimited scope. Circumstances may arise when the bellig- 
erent is excused from disregarding the prohibition. If a neutral possesses neither the power 
nor disposition to check warlike activities within its own domain, the belligerent that in con- 
sequence is injured or threatened with immediate injury would appear to be free from the 
normal obligation to refrain from the commission of hostile acts therein. In naval warfare 
such a situation may arise through the presence of vessels of war of opposing belligerents simul- 
taneously in the same neutral port or roadstead." Also Oppenheim-Lauterpacht, op. cit., 
p. 695^ Smith (pp. cit., p. 148) states that in naval, as in land, warfare the neutral "must be 
both willing and able to assert his exclusive sovereign rights over the area concerned." But see 
Kunz (Kriegsrecht und Neutralitdtsrecht, p. Z40), who asserts that the belligerent right of "self 
help' ' against the forces of an enemy violating neutral rights does not extend to the exercise of 
hostile acts within neutral waters. — It is interesting to note that in land warfare the standards 
applied to neutral and belligerent conduct have not been quite the same as in naval warfare. 
Although the territory of neutral powers is, according to Article 1 of Hague Convention V 
(1907), inviolable, the scope of the neutral's duty is not limited merely to using the "means at 
its disposal." And paragraph 5x0 of the U. S. Army Rules of Land Warfare states the rule 
applicable to land warfare in declaring that: "Should the neutral state be unable, or fail for 
any reason, to prevent violations of its neutrality by the troops of one belligerent entering or 
passing through its territory, the other belligerent may be justified in attacking the enemy forces 
on this territory." With respect to aerial warfare, Spaight (op. cit., p. 434) asserts the legality 
of belligerent attack upon the aerial forces of an enemy making unlawful use of neutral juris- 
diction. However, the precedents he is able to cite from World War II practice in support of 
this opinion are rather slight. 

69 See Law of Naval Warfare, Article 441. 

222 



though this is still a matter of some dispute — in order to prevent an enemy 
from gaining a material advantage in the conduct of war. 60 

It may appear incongruous to maintain, on the one hand, that the 
neutral state is bound only to use the means at its disposal to prevent 
belligerent transgressions of its ports and waters, while asserting, on the 
other hand, that should the means available to a neutral prove ineffective 
a belligerent is not forbidden under the circumstances referred to above 
from attacking an enemy that is misusing these waters. In part, however, 
this apparent incongruity stems from the characterization of the measures 
a belligerent is not forbidden to exercising in neutral waters as measures of 
reprisal. This characterization is mistaken, since the neutral, in using the 
means at its disposal, has fulfilled its duty. But although the neutral state 
has not violated its duty it is equally true that the belligerent, in taking 
hostile measures, has not violated the rights of the neutral. The seeming 
incongruity involved in this situation is resolved then simply by interpret- 
ing the scope of the belligerent's duty to abstain from committing hostile 

60 It is still the opinion of perhaps the majority of writers that the only exception ought to 
be self preservation — interpreted in the most narrow sense. If this is true then belligerent 
forces may resort to hostile measures in neutral waters only when in imminent peril from the 
forces of an enemy, and the appeal to local protection is either precluded by the known weakness 
of the neutral or is simply not feasible in view of the imminence of the peril. Thus, Stone (op. 
«>., p. 401) observes that "where appeal for local protection is feasible, the aggrieved State's 
vessel would seem not to be entitled to defend or help itself in neutral territory or waters. If 
appeal to local protection was impossible or pointless, the attacked vessel's right of self-defense 
is more arguable; it does not seem likely that it could extend beyond what its own self-preserva- 
tion or escape from peril required." — It is, of course, clear that where local protection is avail- 
able — i. e., where the neutral is able to enforce its rights — measures of self help are not permis- 
sible. But then there is no problem. In practice, though, there is always the difficulty that 
the neutral state will later contend that it would have taken the necessary preventive measures 
and that the belligerent's action was hasty and unjustified. There is no easy answer to this 
difficulty, and each case must be judged by the attendant circumstances. But this does not 
alter the essential principle, which is that if such "local protection" is not available a bellig- 
erent may resort to hostile measures of self help in neutral waters. More important is the claim 
that hostile measures must be limited to cases of self-preservation — interpreted narrowly. Yet 
it should be apparent that belligerent misuse of neutral waters may thereby confer important 
advantages upon the lawbreaker, even though considerations of self-preservation — in the 
most immediate and narrow interpretation of that term — are not involved. To limit the bellig- 
erent whose interests suffer as a result of these unlawful activities merely to urging the weak 
neutral to use more effective measures of prevention, when it is evident such measures are not 
available to the neutral, would appear neither a reasonable nor a very realistic solution. No 
doubt the real danger attendant upon the position taken here is that the belligerent may use any 
alleged violation of neutral waters by an enemy — no matter how minor — and against which 
the neutral has not taken effective preventive measures, as an excuse for resorting to hostile 
acts within these same waters. Undoubtedly this danger exists, despite any attempt to restrict 
belligerents by laying down what can only be — at best — rather broad criteria. The only real 
alternative, however, is to prohibit all hostile belligerent measures in neutral jurisdiction 
despite neutral ineffectiveness in preventing the unlawful acts of an enemy. And it should be 
pointed out that even to restrict belligerents to the taking of hostile measures only for reasons 
of "immediate self-preservation" leaves the door more than slightly ajar to the above danger. 

223 



acts against enemy forces within neutral waters as limited, in principle, 
by the effectiveness with which the neutral state can enforce its rights. 

One further problem warrants brief consideration here, and it concerns 
the geographical area within which the belligerent duty to abstain from 
hostile measures is applicable. In the preceding discussion the assumption 
has been that the belligerent's obligation extends only to the territorial 
waters of a neutral. Article 2. of Hague XIII expressly refers to the "terri- 
torial waters of a neutral Power" as the area within which hostile bellig- 
erent measures are forbidden, and the weight of customary practice also 
supports the same restriction of the area within which the belligerent 
duty applies. 61 

Nevertheless, neutral states have frequently expressed dissatisfaction in 
the past over the conduct of belligerent operations in waters contiguous to 
their territorial seas, either for the reason that such operations unduly 
interfered with legitimate neutral trade or because belligerent operations 
were alleged to constitute a danger to the security of the shore state. 62 
During the first World War this neutral concern found occasional ex- 
pression, 63 though there were no instances in which neutral states attemp- 
ted, as a matter of legal right, to restrict belligerent operations in waters 

61 It will be apparent, therefore, that the area within which belligerents may conduct their 
naval operations may vary, depending upon the extent of the territorial waters claimed by 
neutral states and recognized by the belligerents. In the past, neutrals occasionally have sought 
to extend the limits of their territorial waters for the special purposes of neutrality. Although 
such extensions generally have been of modest nature belligerents have been very slow to accord 
them recognition. 

62 For a review of neutral practice in this respect, and belligerent responses, see U. S. Naval 
War College, International Law Situations, 1928, pp. 1-37. Also Harvard Draft Convention on 
Rights and Duties of Neutral States in Naval and Aerial War, op. cit., pp. 343-53 . Articles 18 and 
19 of the Draft Convention state : 

"Article 18. A belligerent shall not engage in hostile operations on, under or over the 
high seas so near to the territory of a neutral state as to endanger life or property therein. 

Article 19. A belligerent shall not permit its warships or military aircraft to hover off 
the coasts of a neutral State in such manner as to harass the commerce or industry of that 
State." 

In the commentary to these articles it is declared that, although sound in principle, there is 
little express authority for them. 

63 The best known instance occurred in 1915-16 and was occasioned over the United States' 
protest to Great Britain that the latter's practice of belligerent cruisers "patrolling American 
coasts in close proximity to the territorial waters of the United States and making the neigh- 
borhood a station for their observations is . . . vexatious and discourteous to the. United 
States." The British Government replied that it was "unaware of the existence of any rules 
or principles of international law which render belligerent operations which are legitimate 
in one part of the high seas, illegitimate in another." In answering the British statement it 
was noted that: "The grounds for the objection of belligerent vessels of war cruising in close 
proximity to American ports are based, not upon the illegality of such action, but upon the 
irritation which it naturally causes to a neutral country." Harvard Draft Convention on the 
Rights and Duties of Neutral States in Naval and Aerial War, op. cit., pp. 350-z. As a result of 
the exchange the British Government did accede, in part, to the expressed wishes of the 
United States, though as a matter of comity not of legal right. 

224 



contiguous to neutral territorial seas. Soon after the outbreak of hostilities 
in 1939 such an attempt was made, however. On October 3, 1939, the 
Governments of the American Republics meeting at Panama adopted a 
declaration whose principal provision read: 

As a measure of continental self-protection, the American 
Republics, so long as they maintain their neutrality, are as of 
inherent right entitled to have those waters adjacent to the 
American continent, which they regard as of primary concern 
and direct utility in their relations, free from the commission of 
any hostile act by any non-American belligerent nation, whether 
such hostile act be attempted or made from land, sea or air. 64 
The Declaration of Panama was without precedent in the recent history 
of neutral-belligerent relations. The "zone of security" established by 
the Declaration extended, in many places, as far as three hundred miles to 
sea. The Declaration was never accorded recognition by the belligerents 
whose behavior it was intended to regulate. Indeed, the various responses 
of the major belligerents to the Declaration were uniform in contending 
that it had no strict foundation in law, that it sought to infringe upon the 
established rights of belligerents, and that it therefore required — to achieve 
any legal standing — the acquiescence of the interested belligerents. 65 Such 
acquiescence was not forthcoming. 

Although largely without results in regulating belligerent behavior the 
Declaration of Panama did serve to focus attention upon the possibility 
that the belligerent's duty to refrain from committing acts of hostility in 
neutral territorial waters might be extended, in time, to include a limited 
zone adjacent to the territorial seas, In principle, such an extension does 
not appear unreasonable. The security needs of states are no less during a 
period of war in which they are not active participants than they are in 
time of peace — if anything, they are considerably greater in time of war. 
The principle of a state's right to exercise a limited jurisdicton in waters 
contiguous to territorial seas is now recognized in time of peace. It may 

64 The text of the Declaration of Panama, as well as relevant diplomatic correspondence, 
together with an analysis of the legal standing of the Declaration may be found in U. S. Naval 
War College, International Law Situations, 1939, pp. 61-80. Strictly speaking, the Declaration 
did not insist upon the legal rights of the neutral states, referring rather to "inherent right," 
"self protection," "fundamental interests of the American States." 

65 The belligerents' reaction to the Declaration was made clear in their replies to the protest 
made by the American Republics on December x^, 1939. The immediate occasion for the pro- 
test was the action between the German vessel Graf Spee and British naval vessels off the coast 
of Uruguay on December 13, 1939. The Naval War College concluded, in its analysis of the 
legal status of the Declaration, that it did not form "a part of international law. Neutral 
jurisdiction for defense purposes over a part of the ocean extending 300 miles from the coast 
is without precedent and has not been generally accepted. There is agreement upon the princi- 
ple but not upon its application to such a tremendously wide belt. Great Britain, France, and 
Germany were acting within their legal rights when they refused to recognize the binding 
nature of the Panama Declaration" (p. 80). 

225 



be expected to obtain similar recognition during a period of hostilities. 66 
If so, this will require the neutral state to take on an added burden, for it 
can hardly be expected that belligerents will be willing to extend the area 
in which they must refrain from hostile operations if neutral states are 
unable to exercise an effective control over these waters. 

2.. "Neutral Ports and Waters As a Base of Operations 

Although the principle that a neutral state ought to prevent the bel- 
ligerent use of its territory, waters and ports as a "base of operations" 
received universal acceptance during the course of the nineteenth century, 
the interpretation and application of this principle has nevertheless been 
marked by a substantial measure of controversy and uncertainty. 67 Not 
infrequently attempts have been made to draw specific consequences from 
the rule forbidding the use of neutral jurisdiction as a base of operations 
that have found recognition neither in the customary practices of states 
nor in the rules embodied in international conventions. This has been 
particularly true of numerous endeavors to determine the precise scope of 
the neutral's duties of prevention, and the belligerent's duties of abstention, 
in naval warfare. 

It may well be that in the "light of logic" a neutral state ought to 
prevent the commission of any act within its domain — whether performed 
by belligerent forces or by private individuals — that may constitute a 
"direct source of augmentation of belligerent military or naval strength." 68 
In fact, however, the interpretations states have given in naval warfare to 
the phrase "base of operations" have not been governed by the canons of 
logic but by the various and conflicting policies of states, by the peculi- 
arities of historical development, and by the circumstances attending 
naval — as distinguished from land and now aerial — warfare. 

Nor can it be asserted that Hague Convention XIII has succeeded in 
resolving the many difficulties involved in applying to naval warfare the 
general principle under consideration. Although Article 5 of this Con- 
vention obligates belligerents to refrain from using "neutral ports and 
waters as a base of naval operations against their adversaries," it is only 
the erection of "wireless telegraphy stations or any apparatus for the pur- 

66 See Law of Naval Warfare, Article 413d, and notes thereto. 

67 In U. S. Naval War College, International Law Situations, 1932 (pp. 1-2.6), a useful historical 
review is made of the varying interpretations given to the term "base of operations" in naval 
warfare, and particularly the differences between the traditional American view, emphasizing 
the amount of supplies and repairs allowed in neutral ports, and the traditional British view, 
stressing the frequency and duration of belligerent stays. 

68 The phrases are Hyde's (pp. cit., p. Z2.49), who writes "that the term 'base of operations' 
fails to indicate with precision the character or scope of the preventive obligation which is 
generally acknowledged to rest upon the neutral; for as yet there seems to be no common 
disposition to impose upon such a State an endeavor to prevent its domain from becoming in 
numerous situations what, in the light of logic, must cause or permit it to be in fact a direct 
source of augmentation of belligerent military or naval strength." 

226 



pose of communicating with the belligerent forces on land or sea" that is 
specifically defined as falling within this general prohibition. There are, 
of course, a large number of further provisions of Hague XIII that may be 
regarded properly as applications of the general prohibition contained in 
Article 5. But the Convention is not exhaustive in enumerating the acts 
a neutral state is obligated to prevent (and a belligerent is obligated to 
abstain from committing), and the commission of which would serve to 
turn the neutral's waters and ports into a base of naval operations. For 
this reason alone, it has not wholly succeeded in removing a measure of the 
uncertainty still encountered in any endeavor to elaborate upon the con- 
sequences following from the prohibition against the use of neutral juris- 
diction as a base of operations for belligerent forces. 69 

The duty imposed upon a neutral state not to permit its territory, ports 
and waters to be used as a base of operations requires the neutral to prevent 
the commission of certain acts, whether performed by belligerent forces 
located temporarily within neutral jurisdiction or by private individuals. 
The scope of the neutral's duties of prevention with respect to acts of 
belligerent forces within its jurisdiction will be considered in later pages. 
Here it is desirable to examine the restraints a neutral state must impose 
upon the acts of private individuals. 

It has been pointed out 70 that although a neutral state must abstain 
both from the supply of war materials to belligerents as well as from the 
performance of certain services that would serve to aid belligerents in the 
prosecution of war it is normally under no obligation to prevent its subjects 
from undertaking similar acts of assistance to belligerents. The neutral 
state is therefore under no duty to prevent its subjects from trading in war 
materials with belligerents; and in carrying on such trade it is immaterial 
whether war materials are exported to belligerent ports in neutral bottoms 
or are carried away from neutral ports by belligerent merchant vessels. 

There are, however, certain exceptions to this distinction between the 
obligations of abstention imposed upon a neutral state with respect to its 
own actions and the absence of any obligation to prevent similar acts when 
performed by private individuals within neutral jurisdiction. One such 
exception may be seen in Article 8 of Hague XIII, which reads: 

A neutral Government is bound to employ the means at its dis- 
posal to prevent the fitting out or arming of any vessel within its 

69 In addition, the more detailed provisions of Hague XIII are not always free from ambiguity. 
It is customary for writers to assume that in the event of doubt as to the meaning of these more 
detailed provisions such doubt must be resolved — whenever possible — by reference to Article 5. 
Although the Convention does not expressly establish this procedure, and does not specifically 
create any hierarchy among its various norms, the assumption that ambiguous provisions may 
be interpreted by reference to Article 5 is not unreasonable. But even if it is assumed that this 
procedure is justified the result may be only to return to the general prohibition whose inter- 
pretation and application created so much uncertainty in the first place. 

70 See pp. xo9 ff. 

399334—57 16 227 



jurisdiction which it has reason to believe is intended to cruise, 
or engage in hostile operations, against a Power with which that 
Government is at peace. It is also bound to display the same 
vigilance to prevent the departure from its jurisdiction of any 
vessel intended to cruise, or engage in hostile operations, which 
had been adapted entirely or partly within the said jurisdiction 
for use in war. 71 

In explanation of the above rule it has been stated that a vessel "intended 
for operations of war is so complete a weapon of war, its departure may so 
nearly amount to the use of neutral territory as a base of operations, and 
its activities may be of such decisive influence, that it has now come to be 
regarded as not unreasonable to require a neutral government to take upon 
itself the comparatively simply duty of preventing such a vessel from 
leaving its jurisdiction". 72 It is tempting to find in this explanation a still 
more general basis for distinguishing between those acts of private indi- 
viduals a neutral state is obligated to prevent within its jurisdiction and 
those acts the commission of which does not involve the neutral's responsi- 

71 Article 8 of Hague XIII is derived from the so-called "Three Rules of Washington", which 
grew out of the Alabama controversy between Great Britain and the United States at the time 
of the American Civil War. By the Treaty of Washington, May 8, 1871 the parties to the 
controversy agreed upon the settlement of their differences by arbitration, and further agreed 
that the arbitrators would be bound by the three rules. The first rule is practically identical 
with Article 8 of Hague XIII, except that it obligated neutral governments to use "due dili- 
gence" to prevent the measures now prohibited by Article 8, whereas Article 8 uses the phrase 
"means at its disposal." 

72 J. A. Hall, The Law of Naval Warfare (192.1), p. 150. — The applicability to aircraft of the 
obligations embodied in Article 8 of Hague XIII is still unsettled. According to Article 46 
of the unratified 19x3 Rules of Aerial Warfare, a neutral government must use the means at its 
disposal: 

"1. To prevent the departure from its jurisdiction of an aircraft in a condition to make a 
hostile attack against a belligerent Power, or carrying or accompanied by appliances or materials 
the mounting or utilization of which would enable it to make a hostile attack, if there is reason 
to believe that such aircraft is destined for use against a belligerent Power. 

"2.. To prevent the departure of an aircraft the crew of which includes any member of the 
combatant forces of a belligerent Power. 

"3. To prevent work upon an aircraft designed to prepare it to depart in contravention of 
the purposes of this Article." 

The necessity of an "Alabama" rule for aircraft is evident, and in view of the greater adapta- 
bility of aircraft for hostile operations such a rule should be — if anything — more strict than the 
present obligations imposed upon neutrals with respect to warships. Nevertheless, no clear 
rule with respect to aircraft has yet emerged, although there can be little question that a neutral 
state in allowing aircraft to leave its jurisdiction in a condition to make a hostile attack against a 
belligerent would thereby become liable to the charge that its territory had been used as a 
belligerent base of operations. See Spaight, of. cit., pp. 474-7. Beyond this, however, the 
obligations of the neutral state — even after World War II — remain undefined. It is relevant, 
in this connection, to quote common Article 15 (paragraph z) of the 1938 Neutrality Regu- 
lations of the Northern European Neutrals: "Any aircraft in a condition to commit an attack 
against a belligerent, or which carries apparatus or material the mounting or utilization of 
which would permit it to commit an attack, is forbidden to leave . . . territory if there is 

228 



bility. The former may be considered to consist in acts which directly 
assist or strengthen a belligerent's military and naval forces; the latter 
consisting only in the indirect strengthening of the belligerent's general 
capacity to wage war. To a substantial degree this distinction can be 
considered as well-founded in the traditional law. 73 In certain respects, 
however, its applicability must remain doubtful. It is, for example, not 
even entirely applicable with respect to the neutral's obligation in Article 8 
of Hague XIII, for Article 8 has been interpreted by states to imply not 
only the duty of a neutral to prevent the departure of vessels intended for 
immediate delivery at sea to a belligerent, there to be used for hostile 
operations, but also to imply the duty of a neutral state to prevent the 
departure from its jurisdiction of said vessels even though they are first to 
be delivered to a belligerent port in a manner similar to any other com- 
mercial transaction. Whereas the private delivery of other kinds of war 
materials from a neutral state to a belligerent port does not involve the 
responsibility of the neutral state, the same cannot be said of the delivery 
to belligerent ports of a vessel intended to engage in hostile belligerent 
operations and which has been adapted — in whole or in part — within 
neutral jurisdiction for warlike use. 74 

reason to presume that it is destined to be employed against a belligerent Power. It is likewise 
forbidden to perform work on an aircraft in order to prepare its departure for the above-men- 
tioned purpose." A. J. I. L., 32. (1938), Supp. pp. 141 ff. — It should perhaps be made clear that 
the remarks in this note do not have reference to the quite different question concerning the entry 
into, or subsequent departure from, neutral territory of belligerent military aircraft (see pp. 
2.51-2.). 

73 Though it certainly does not invalidate the excellent criticism of Hyde (pp. cit., p. Z2.97), 
to wit: "The exportation of war material from neutral territory constitutes usually the general 
strengthening of the sinews of the belligerent behind the transaction, rather than the proximate 
cause of the augmentation of a unit of military power. Neutral territory is, nevertheless, 
utilized as a base of belligerent supply as certainly as if a particular force such as a fleet were 
the direct recipient of aid. To limit, therefore, the duty of the neutral to the case where its 
territory affords aid to, or is creative of, a unit of military or naval strength capable of engaging 
in immediate hostile operations, is to raise an artificial distinction which is hardly responsive 
to principle or to existing conditions of warfare." — Yet despite the admitted 'artificiality' of 
the distinction it remains one of the principal bases of the traditional law. 

74 It is occasionally contended that a distinction must still be drawn between selling armed 
vessels to belligerents and building them to belligerent order; that whereas the neutral state is 
not obligated to prevent the sale of such vessels when having the character of an ordinary 
commercial transaction, it is forbidden to allow building to the order of a belligerent. Thus: 
"An armed ship, being contraband of war, is in no wise different from other kinds of contra- 
band, provided that she is not manned in a neutral port, so that she can commit hostilities at 
once after having reached the open sea. A subject of a neutral who builds an armed ship, or 
arms a merchantman, not to the order of a belligerent, but intending to sell her to a belligerent, 
does not differ from a manufacturer of arms who intends to sell them to a belligerent. There 
is nothing to prevent a neutral from allowing his subjects to sell armed vessels, and to deliver 
them to belligerents, either in a neutral port or in a belligerent port ... On the other hand, 
if a subject of a neutral builds armed ships to the order of a belligerent, he prepares the means of 
naval operations, since the ships, on sailing outside the neutral territorial waters and taking in 

229 



In those instances where warships are built to the order of a belligerent, 
or are otherwise intended for belligerent use, the neutral's duty is clear. 
Equally clear is the neutral's obligation to prevent the conversion of 
belligerent merchant vessels into warships while in neutral ports. Diffi- 
culties may arise, however, in the event that belligerent merchant vessels 
take on arms and war supplies for the purpose of conversion to warships 
once on the high seas. Although the scope of the neutral's duty in this 
latter instance is not entirely clear, it would seem that the neutral is obliged 
to exercise the means at his disposal in order to prevent belligerent merchant 
vessels suspected of intended conversion from receiving any war materials 
while in neutral ports. Similar care must be exercised by the neutral with 
respect to armed belligerent merchant vessels, if suspected of not having 
used such armament solely for defensive purposes. Indeed, the far-reaching 
transformation in the position now occupied by merchant vessels in relation 
to a belligerent's military effort at sea — a transformation the consequences 
of which are still far from being generally recognized — necessitates the 
re-examination of the status to be accorded these vessels while in neutral 
waters and ports. The contention that this transformation no longer 
justifies the differentiation in treatment formerly drawn between the war- 
ships and merchant vessels of a belligerent must be given serious consider- 
ation. If this contention is well founded, and it will be examined in a 
further section, 75 then the duties of a neutral state will be increased con- 
siderably. It is at least clear that in relation to belligerent merchant 
vessels the neutral's duties of prevention under Articles 5 and 8 of Hague 
XIII have become increasingly wider in scope as a result of the recent 
practices of belligerents. 

In this connection, brief consideration may be given to one further 
category of acts the commission of which by private individuals may serve 
to turn neutral waters and ports into a base of operations. Although the 
neutral state is under no obligation to prevent the departure of merchant ves- 
sels carrying contraband of war to the ports of a belligerent, is it obliged 

a crew and ammunition, can at once commit hostilities." Oppenheim-Lauterpacht, op. cit., 
p. 713. The distinction drawn by Oppenheim was relied upon in the opinion (dated August 2.7, 
1940) of the Attorney General of the United States on the legality — under international law — 
of the exchange of over-age American destroyers for the lease of British naval and air bases. 
For text of opinion, see A. J. I. L., 34 (1940), pp. 7x8-35. There can be little doubt, however, 
that the distinction in question has almost no foundation in the practice of states. See, for 
example, the criticism of Herbert W. Briggs, who points out that "the practice of states . . . 
has overwhelmingly rejected Oppenheim's distinction since 1871, and the United States Gov- 
ernment is on record as never having accepted it." "Neglected Aspects of the Destroyer Deal," 
A.J. I. L., 34 (1940), p. 587. It may be noted further that even if the distinction made by Oppen- 
heim could be accepted it would not have justified the destroyer-base agreement, since the 
distinction refers only to the actions of neutral subjects, not to acts of the neutral state. The 
latter is clearly forbidden by Article 6 of Hague XIII from engaging in such transactions. 
75 See pp. 247-51. 



230 



to prevent the departure of merchant vessels carrying war materials in- 
tended for direct delivery to a belligerent's naval forces at sea? It should 
be made clear that the question raised does not refer to vessels bearing the 
formal status of auxiliary warships, or to vessels which — though not pos- 
sessing this status — nevertheless act in the direct and continuous employ 
of a belligerent fleet. With respect to either of these categories of vessels 
there is no question, since a neutral state certainly must treat them in the 
same manner as belligerent warships. 76 Under consideration here are 
rather vessels — whether neutral or belligerent — not in the direct and con- 
tinuous employ of a belligerent fleet but which the neutral state has reason 
to believe intend to deliver certain war materials to belligerent warships. 

No doubt as judged by the "standards of logic" the neutral's duty is 
clear. To forbid belligerent warships from obtaining armaments and other 
supplies of war in neutral ports, while at the same time allowing neutral 
and belligerent merchant vessels to provide belligerent forces at sea with 
these materials, would not unreasonably appear to be a patent evasion of 
the principle forming the basis of the neutral's duty to prevent its waters 
and ports from becoming a base of operations. Nonetheless the matter 
remains unsettled in law, and it is not possible to define with certainty the 
scope of the neutral's duty of prevention. In practice, however, an in- 
creasing number of states when neutral do prohibit the departure of any 
merchant vessel from their ports when there is reason to believe that the 
supplies carried are destined for direct delivery to a belligerent fleet. 77 
But whether this practice may be declared sufficient to constitute a custom 
presently binding upon neutral states must remain doubtful. 78 

a. The Passage of Belligerent Warships and Prizes Through Neutral 
Territorial Waters 

The problem of belligerent passage through neutral waters must be dis- 

76 See pp. 39-40. 

77 During both World Wars most neutral states prohibited this practice. — The United States 
Neutrality Regulations of September 5, 1939 prohibited, in paragraph 12., the "dispatching 
from the United States, or any place subject to the jurisdiction thereof, any vessel, domestic or 
foreign, which is about to carry to a warship, tender, or supply ship of a belligerent any fuel, 
arms, ammunition, men, supplies, dispatches, or information shipped or received on board 
within the jurisdiction of the United States." In the Neutrality Act of November 4, 1939 
(section 10) the President was given still broader powers to prevent the departure of vessels 
from American ports whenever reasonable cause existed for believing that such vessels intended 
to supply belligerent warships with fuel, arms or ammunition. — Common Article 14 of the 
1938 Neutrality Regulations of the Northern European Neutrals provided that: "Vessels or 
aircraft obviously navigating with a view to supplying the combatant forces of the belligerents 
with fuel or other provisions are prohibited to take on supplies in ports ... or anchorages exceed- 
ing in quantity that necessary for their own needs." A. J. I. L., 31 (1938), Supp., pp. 141 ff. And 
to the same effect, Article 5 of the Recommendation (February z, 1940) of the Inter-American 
Neutrality Committee, A. J. I. L., 34 (1940), Supp. p. 80. 

78 The opinions of writers are neither consistent nor altogether clear on this point, though 
the majority are reticent to assert that the practice referred to above may be considered as now 
possessing a customary character. 

231 



tinguished from the case of belligerent entry and stay in neutral waters and 
ports. Article 10 of Hague Convention XIII provides that the "neutrality 
of a power is not affected by the mere passage through its territorial waters 
of war-ships or prizes belonging to belligerents," and this conventional 
rule finds general support in customary international law as well. 79 In 
permitting neutral states to allow the mere passage of belligerent warships 
and prizes through their waters Article 10 does not thereby determine what 
a neutral state may forbid to belligerents. Since a neutral's rights are, in 
this respect, no less in time of war than in time of peace it may place severe 
restrictions upon — and probably forbid altogether — the passage of bellig- 
erent warships and prizes through its waters, or at least through those 
waters that do not connect two parts of the high seas and are not used as a 
highway for international navigation. 80 In imposing restrictions upon the 

79 See Law of Naval Warfare, Article 443. 

80 See Law of Naval Warfare, Article 412. (and notes thereto), where it is pointed out that 
extension of the right of innocent passage in time of peace to warships remains an unsettled 
matter. It would appear that the practice of states does indicate a general reluctance to 
recognize a clear right of innocent passage as extending to warships, although it is true that 
under normal circumstances the denial of passage to foreign warships frequently has been 
regarded as an unfriendly act. Recently, the International Law Commission, in its final 
Report on the Law of the Sea, adopted at its Eighth Session (see U. N. General Assembly, Official 
Records, nth Sess. Supp. No. 9 (Doc. A/3159)), dealt with the scope of the right of innocent 
passage in time of peace. Article X4 of the Report declares that the coastal state "may make 
the passage of warships through the territorial sea subject to previous authorization or noti- 
fication. Normally it shall grant innocent passage subject to the observance of the provi- 
sions of Articles 17 and 18." And paragraph 1 of Article 17 states that the coastal state "may 
take the necessary steps in its territorial sea to protect itself against any act prejudicial to its 
security or to such other of its interests as it is authorized to protect under the present rules 
and other rules of international law." According to Article Z5 a warship failing to comply 
with the regulations of the coastal state concerning passage through the territorial sea may 
be ordered to leave such waters. 

It should be fairly apparent that the argument directed against conceding any right of passage 
through territorial waters to foreign warships is much stronger in time of war than during 
a period of peace. The interest of a neutral state in preventing belligerent use of its waters 
as a base of operations, and in preserving a strict impartiality, may well appear to dictate a 
policy of prohibiting altogether the lateral passage of belligerent warships through its terri- 
torial waters. As presently noted in the text, the passage of belligerent warships through 
neutral waters is — in any event — an anomoly which finds no parallel in land or aerial warfare. 
Although it has been justified by pointing out that the interests of a strict neutrality must be 
qualified in this instance by the character of the sea as a highway for international naviga- 
tion the argument is not impressive. There has long been a conviction that neutrals ought 
to have a right to deny passage altogether to warships, and this view was given expression 
at the Hague Conference of 1907. At that Conference, however, a number of states — and 
particularly Great Britain — insisted upon a right of innocent passage for warships. Article 
10 of Hague XIII formed a compromise between these conflicting views. During World War 
I the Netherlands adopted the rule that — save in distress — belligerent warships were forbidden 
either to enter or to stay in Netherlands territorial waters, though this denial of passage was 
later justified against Germany by the argument that Netherlands waters did not constitute 
a normal route for the navigation of German warships. Hence, the possible significance of 

232 



passage of warships through its waters the neutral state is only required 
to act impartially toward all belligerents. 

Although Article 10 permits neutrals to allow belligerent warships 
"mere passage" through their waters it leaves unanswered several questions. 
May the neutral state grant anything more than "mere passage," or does 
Article 10 — without expressly so stating — indicate the scope of the neu- 
tral's duty with respect to belligerent passage through its territorial 
waters? In addition, if Article 10 states the scope of the neutral's duty — 
which is to prevent belligerent transit through its territorial waters other 
then for the purpose of "mere passage" — then what is the meaning of the 
"mere passage" a neutral may permit? Finally, and in close connection 
with the preceding question, is there any time limit imposed upon bel- 
ligerent passage through neutral waters? 

There would appear to be general agreement that Article 10 does define 
the scope of the neutral's preventive obligation. There is less agreement, 
however, upon the precise nature of the neutral's obligation to prevent 
belligerent transit through its waters other than for purposes of "mere 



the Netherlands action is not altogether clear. Nevertheless, it is believed that a neutral 
state would not violate international law if it did forbid passage — however innocent — through 
its territorial sea to the warships of belligerents (the same position is taken in the Harvard 
Draft Convention on the Rights and Duties of Neutral States in Naval and Aerial War, op. cit., pp. 
4x2.-4). 

One clear exception to the position advanced above may be seen in the case of straits connect- 
ing two parts of the high seas and used as a highway for international navigation; here the bel- 
ligerent would appear to have a right to claim innocent passage for its warships and prizes. In 
the case of canals that are regulated by international agreement passage is governed by the terms 
of the agreement. In either case, however, passage is subject to the right of the neutral littoral 
state to take reasonable measures to secure the protection of the waterway and to insure the in- 
tegrity of its neutral status. According to treaty, when the United States is neutral the Panama 
Canal shall be free and open, on terms of entire equality, to the vessels of commerce and of war of 
all nations observing the rules laid down in the Hay-Pauncefote Treaty concluded November 18, 
1901 between the United States and Great Britain. On September 5, 1939 two Executive Orders 
were proclaimed setting forth the regulations governing neutrality in the Canal Zone and the 
passage of warships through the Panama Canal. For texts of orders, U. S. Naval War College, 
International Law Situation, 1939, pp. 139-43. Among other things these Orders restricted bellig- 
erent passage or stay in the waters of the Canal Zone to twenty-four hours (with certain excep- 
tions) in addition to the time required to transit the Canal, limited the number of warships of 
one belligerent permitted at any one time in either port or waters to three, restricted the total 
number of warships of all belligerents allowed at any one time in the Canal and the waters of 
the Canal Zone to six, and prohibited warships from effecting repairs and obtaining fuel and 
provisions except under written authorization from Canal authorities. Finally, a belligerent 
warship was permitted to pass through the Canal "only after her commanding officer has given 
written assurance to the authorities of the Panama Canal that the rules, regulations, and 
treaties of the United States will be faithfully observed." — A detailed survey of the practice of 
states with respect to the passage of belligerent warships through international waterways, 
when the littoral or riparian state is neutral, may be found in R. R. Baxter, "Passage of Ships 
Through International Waterways in Time of War," B. Y. I. L., 31 (1954), pp. 19Z-2.02.. 



233 



passage." 8l It has been contended that the passage a neutral may permit 
belligerents must be considered, both by custom as well as by convention, 
together with, and restricted by, the neutral obligation to prevent its 
waters from being used as a belligerent base of naval operations; that in 
terms of Hague XIII Article 10 must be read along with Article 5 of the 
Convention. According to this interpretation the "mere passage" a 
neutral may permit belligerent warships must be of an innocent nature, in 
the sense that it is strictly incidental to the normal requirements of navi- 
gation and not intended in any way to turn neutral waters into a base of 
operations. Thus the circuitous and prolonged passage through neutral 
territorial waters for the ostensible purpose of avoiding combat with an 
enemy has been held to fall within the prohibition — contained in Article 
5 — against using neutral waters as a base of operations, and for this reason 
cannot be considered as constituting " mere passage" allowed in Article io. 82 
In principle, this argument would appear well founded and reasonable. 
The practice of permitting belligerent warships (and prizes) to use neutral 
territorial waters for passage is, in any event, an anomaly which finds no 
parallel either in land or in aerial warfare. 83 Recent experience indicates 
that if belligerent passage through neutral waters is to be tolerated at all 
it must be kept within the narrowest of limits. At the same time, it must 
be pointed out that even if it is assumed that — from the point of view of 
Hague XIII — Article 10 is to be interpreted by reference to Article 5 (i. e., 
"mere passage" must not be so used as to turn neutral waters into a "base 



81 There is no doubt at all, however, that the passage allowed a belligerent warship through 
neutral waters does not permit taking on provisions or making repairs. But a neutral state 
may allow, according to Article 11 of Hague XIII, the use of neutral pilots by belligerent 
warships. 

82 "While according to customary International Law and to Hague Convention XIII the 
neutral State is entitled to permit the passage of men-of-war through its territorial waters, the 
nature and duration of such passage are governed by the overriding principle that neutral 
territorial waters must not be permitted to become a basis for warlike activities of either bel- 
ligerent. The prolonged use of neutral territorial waters by belligerent men-of-war or their 
auxiliaries for passage not dictated by normal requirements of navigation and intended, inter 
alia, as a means of escaping capture by superior enemy forces must, therefore, be deemed to 
constitute an illicit use of neutral territory which the neutral State is by International Law 
bound to prevent by the means at his disposal or which, in exceptional cases, the other bellig- 
erent is entitled to resist or remedy by way of self-help." Oppenheim-Lauterpacht, op. cit., 
pp. 694-5. A substantially similar view has been taken by the majority of British writers. 
For the position of the British Government in the Altmark incident, see pp. 2.37-8. 

83 See, for example, the observations of Hyde (op. cit., p. 2.3i2.)> wno considers the present use 
belligerents may make of neutral waters as "grotesque and unrealistic," and also suggests that 
"passage of belligerent vessels of war through neutral waters should, by general agreement, 
be greatly restricted, if not entirely forbidden." Also B. M. Telders, "L'Incident De L' Alt- 
mark," Revue Generate De Droit International Public, 68 (1941-45), p. 100, who suggests that the 
moral of the Altmark incident, considered below, is to support the belief that the prohibition 
of entry to belligerent warships into neutral waters — save in case of distress — is the best means 
of insuring the neutrality of non-participants. 

234 



of operations"), this will result only in raising the question — the answer 
to which is hardly self-evident — as to when belligerent transit through 
neutral waters does clearly cease to be "mere passage" and constitutes 
instead the use of such waters as a base of operations. Apart from the ex- 
press prohibition already contained in Hague XIII, the nature of the acts 
that may be regarded, when performed by belligerent warships, as turning 
neutral waters into a base of operations has admittedly long been a matter 
of controversy and uncertainty. If the answer to this question may not 
be found in the provisions of Hague XIII, it is still less probable that it 
will be found in the customary law; for it is the latter that has always 
provided so much uncertainty as to the specific meaning to be accorded 
the phrase "base of operations." The interpretation is not altogether 
excluded, therefore, that passage through neutral territorial waters, al- 
though undertaken in order to avoid an enemy, "does not diminish the 
privilege of using the territorial waters for transit." 84 

Whether or not any time limit is imposed upon the "mere passage" 
neutrals may permit to belligerent warships forms a related, though some- 

84 Edwin Borchard, "Was Norway Delinquent in the Case of the Altmark," A. J. I. L., 34 
(1940), p. 194. Other writers share this opinion; e. g., Erik Castren (pp. cit., p. 515) asserts 
that: "Warships entering neutral waters in order to escape from the enemy may also pass 
through them." This position hardly seems sustainable, however, if passage through neutral 
waters also involves following a circuitous route having no reasonable relation to normal 
requirements of navigation. But the matter may not always be so clear-cut. What if bellig- 
erent passage through neutral waters does conform to ordinary navigational requirements? 
May it nevertheless be regarded as exceeding "mere passage" if it serves either to confer a di- 
rect military advantage upon a belligerent or to result in endangering the peace and security 
of the neutral state 1 Belligerent passage through neutral waters always forms a part of naval 
operations and therefore can always be interpreted as conferring some sort of advantage upon 
the belligerent which makes use of neutral territorial waters. It may prove next to impossible 
to determine whether or not passage does serve in a concrete instance to confer a direct mili- 
tary advantage (or, put in other terms, whether or not passage serves to turn neutral waters 
into a base of operations). This is particularly so when passage conforms to ordinary naviga- 
tional requirements. Of course, it may be argued — as a number of writers have so argued — 
that the legitimacy of passage is determined not only by the specific use to which neutral waters 
may be put but also by the degree to which passage — whatever its actual purpose — may 
endanger the peace and security of the neutral state. This latter criterion is a significant one 
and ought not to be confused with the base of operations criterion. Although the use of neu- 
tral waters as a base of operations necessarily endangers the peace and security of the neutral 
the converse proposition is not always the case. The peace and security of the neutral state 
may be endangered by belligerent passage, but such passage clearly need not constitute the use 
of neutral waters as a base of operations. From this point of view, passage is no longer "inno- 
cent" (and hence no longer "mere passage") if it is likely to result in tempting an enemy to 
take hostile measures in neutral waters. One obvious difficulty here, however, is that the 
determination of the "innocence" of passage may thereby be left in practice to the initiative 
of the belligerents, since the latter have only to react adversely to an enemy's passage through 
neutral waters and the consequence will be to endanger the peace and security of the neutral 
state. — Admittedly, the preceding remarks raise difficult — and as yet unsettled — questions. 
Nor is it likely that these questions will ever be resolved satisfactorily short of clear change in 
a rule that has long been an anachronism in the law of neutrality. 

235 



what subsidiary, question. In terms of Hague XIII this latter question 
concerns the relation of Article 10 to Article it. Article n states : 

In the absence of special provisions to the contrary in the legis- 
lation of the neutral Power, belligerent ships of war are forbidden 
to remain in the ports, roadsteads or territorial waters of the said 
Power for more than twenty-four hours, except in cases covered by 
the present Convention. 

The problem is essentially that of determining whether or not Article 10 
is one of the "cases covered." Either interpretation is possible, and it 
would therefore appear that the matter of determining the time limit to 
be allowed for passage through neutral waters must be left to the decision 
of the neutral state concerned. In general, the practice of neutral states 
has been to limit belligerent passage to a period not exceeding twenty-four 
hours. 85 But it should be emphasized that whatever length of period the 
neutral state may establish for the passage of belligerent warships through 
its waters this cannot affect the nature of the passage allowed. If bel- 
ligerent passage has a character other than that of "mere passage," pro- 
vided for in Article 10, it is forbidden for any period of time. On the other 
hand, it is not unreasonable to contend that the length of the period of 
passage — i. e., a prolonged use of neutral waters — is itself one indication 
of the purposes for which transit is made. 

The difficulties involved in interpreting the scope of the neutral's duty 
in regulating belligerent transit through its territorial waters were strik- 
ingly illustrated during the second World War in the Altmark incident. 
On February 14, 1940, the German naval auxiliary vessel Altmark entered 
Norwegian territorial waters on a return trip from the South Atlantic to 
Germany. The vessel carried almost three hundred captured British sea- 
men on board, a fact which, in itself, had only a limited relevance to the 
principal legal issues involved. The German auxiliary was granted per- 
mission by the Norwegian authorities to navigate through the latter's 
territorial waters. At the same time the Norwegian authorities refused 
the request made by the commander of British naval forces in the area 
that the Altmark be searched in order to determine whether she carried 
British prisoners. On February 16, 1940, after the Altmark had passed 
through approximately four hundred miles of Norwegian waters, a British 

85 See p. i4i (n). In the regulations of many neutral states no attempt has been made to dis- 
tinguish clearly between the time allowed for passage through neutral waters and the period 
governing entry and stay in neutral waters and ports. Thus the United States Neutrality Regu- 
lations of September 5, 1939 declared: "If any ship of war of a belligerent shall, after the time 
this notification takes effect, be found in, or shall enter any port, harbor, roadstead, or waters 
subject to the jurisdiction of the United States, such vessel shall not be permitted to remain 
in such port, harbor, roadstead, or waters more than twenty-four hours, except in case of stress 
of weather, or for delay in receiving supplies or repairs, or when detained bv the United States 
..." The preceding regulation was interpreted, however, as applying both to passage through 
territorial waters as well as to stay in port. 

236 



destroyer entered these waters and forcibly released the prisoners held on 
board the German vessel. No attempt was made by the British destroyer 
carrying out the action either to capture or to sink the Altmark.** 

In justification of the British action in the Altmark case it has been urged 
that Norway failed to comply with the obligations of neutrality by not 
conducting a proper investigation into the nature and object of the Alt- 
mark's voyage and of the use to which she was putting Norwegian terri- 
torial waters. 87 Still further, it has been argued that, in taking an extremely 



86 A brief summary of the Altmark incident, and part of the diplomatic correspondence pro- 
voked by the incident, are given in Hackworth, op. at., Vol. VII, pp. 568-75. The texts of 
the notes exchanged between Great Britain and Norway during the period extending from 
February 17, 1940 to March 15, 1940 were published in 1950 by Great Britain (Norway No. 1 
(1950), Cmd. 8oix). In an abundant literature the clearest, and most detailed, exposition of 
the legal issues raised by the case — though reflecting the British position — has been given by 
C. H. M. Waldock, "The Release of the Altmark's Prisoners," B. Y. I. £,.,2.4(1947), pp. 116-38. 
Upon entering Norwegian waters the Altmark was hailed by a Norwegian naval vessel which 
confined itself to an examination of the Altmark's papers. Although a number of writers have 
concentrated upon the question of the precise status of the vessel there was no disagreement 
between Great Britain and Norway on this point. The Altmark was a German naval auxiliary, 
listed as such by Germany, and entitled to be treated in a manner similar to any other warship. 
Prior to her return voyage from the South Atlantic she had operated with the Graf Spee, and 
indeed the British prisoners she carried on board were taken from ships sunk by the Graf Spee. 
Nor could there by any question about the plainly circuitous nature of the Altmark's voyage, 
since during the course of her initial examination the captain had stated that the Altmark was 
on her way from Port Arthur, Texas, to Germany. On the second day of passage another 
Norwegian naval vessel sought to inspect the Altmark but the request was refused. In response 
to questions put to him the captain of the Altmark denied carrying any nationals of another 
belligerent. When asked why the Altmark had earlier violated Norwegian neutrality regula- 
tions by making use of her wireless the captain responded that he was unaware of any prohi- 
bition against such use. During the greater part of her passage through Norwegian waters 
the Altmark was escorted by Norwegian naval vessels. 

87 The precise nature of this particular argument should be thoroughly understood. Initially, 
much was made of the fact that the Altmark was carrying prisoners of war, and in its earlier 
notes and public statements the British Government weakened its position considerably not 
only by its almost exclusive concentration upon this aspect but also by giving the impression 
of contending that the passage of a belligerent warship through neutral waters was unlawful 
if the warship carried prisoners of war. However, a belligerent may enter neutral waters and 
ports even though carrying prisoners of war on board and this fact in itself does not legally 
alter the position of the vessel or the obligations of the neutral. Provided that the Altmark's 
passage through Norwegian waters was in accordance with international law and Norway's 
neutrality regulations there was no duty on Norway's part to object to the transport of prisoners 
through her waters. The duty to release prisoners of war held on board a warship follows 
only upon the act of interning the warship for violation of neutral waters. (It is also possible 
that, exceptionally, the release of prisoners may occur in other circumstances. Thus the 
Uruguayan Government released the prisoners held by the Graf Spee, as a condition for granting 
the Graf Spee a seventy-two hour stay in Montevideo for the purpose of making repairs to 
damage incurred in battle. But it would be premature to draw any conclusions from this one 
incident.) Hence Norway's duty to release the British seamen held on board the Altmark 
would arise only as a result of interning the vessel for unlawful use of Norwegian waters. 

The decisive point, therefore, concerned the nature of the Altmark's passage — i. e., its legality 

237 



circuitous route which involved making prolonged use of Norwegian 
waters for the evident purpose of avoiding capture by British forces, the 
Altmark's passage went far beyond the "mere passage" a neutral state may 
grant belligerent warships under Article 10 of Hague XIII. Given these 
circumstances, the passage of the Geiman auxiliary vessel amounted to 
the use of Noiwegian waters as a "base of operations," within the mean- 
ing of Article 5 of the same convention. Hence, Norway had the duty 
either to intern the vessel and to release the prisoners, or, at the very 
least, to order the Altmark out of Norwegian waters. 87a 



or illegality — and the later British note of March 15, 1940 properly emphasized this point. 
At the same time, the note of March 15th insisted that a neutral was obliged to take those 
measures necessary to insure that belligerent warships do not make improper use of its waters. 
The final British position concentrated then upon two principal legal arguments. The first 
concerned what may be termed the extent of the investigative measures a neutral must take to 
ensure the integrity of its waters, whereas the second dealt with the problem of what actually 
constitutes belligerent misuse of these waters under the guise of "mere passage." Great 
Britain contended that the Norwegian Government in allowing its attempts at further investi- 
gation of the Altmark to be frustrated had violated its neutral obligations, that the refusal by 
the captain of the Altmark to permit the search of his vessel obligated Norway to order the 
Altmark out of Norwegian waters. Search of the Altmark would have revealed the presence of 
prisoners, and although the transport of prisoners through neutral waters is not in itself un- 
lawful their transport under these particular circumstances would have enabled Norway to judge the 
true nature and purpose of the voyage — hence its unlawful character. Instead, the British note 
pointed out, Norway contented itself not only with making a very inadequate investigation 
but even went out of its way to facilitate the Altmark' s voyage. 

The Altmark incident thus raised the general question as to what measures — if indeed any — 
of an investigative character a neutral is bound to take with respect to belligerent warships 
entering its waters. More specifically, does a neutral have a duty — as well as a right — to 
search a warship in circumstances raising reasonable doubt as to the legitimacy of the use to 
which neutral waters may be put. In the Altmark case Norway insisted that the peacetime 
immunity accorded foreign warships was equally applicable in time of war and that the Altmark 
was merely exercising this right of immunity when she turned down the Norwegian request 
to search the vessel. This position is hardly conducive to an effective neutrality, however, 
which would rather appear to require that an exception be made to the normal immunity 
granted foreign warships. Certainly there is much to be said for the view "that a neutral 
state which has bona fide reasons for questioning a particular use of its waters by a belligerent 
warship has both the right and the duty to investigate the ship's activities, even to the extent 
of a reasonable inspection of the ship itself." Waldock, op. cit.> p. zzi. 

87a Professor Waldock's (op. cit., p. Z35) conclusions are as follows: 

"(a) Norway's view that passage is covered only by Article 10 and is not touched by the 
Z4 hours' rule of Article iz ought not to be accepted. Norway was therefore in default in 
permitting the Altmark' s passage to exceed Z4 hours. 

"(b) The Altmark's circuitous passage to escape attack was not 'mere passage' within the 
meaning of Article 10, but a use of Norwegian waters for defensive naval operations contrary 
to Article 5. Norway was therefore in default in allowing such passage at all. 

"(c) Even if a breach of Article 5 is not regarded as conclusively established under the 
existing rules of international law, the Altmark's use of Norwegian waters was undeniably for 
refuge as well as for passage. In these circumstances it was inadmissible for Norway to regard 
the Altmark's passage as 'mere passage' within the meaning of Article io } and accordingly 

238 



Whether the hostile action taken by Great Britain within Norwegian 
waters was justified, even under the assumption that Norway was clearly 
derelict in her neutral duties, may receive separate consideration. 88 Here 
it is relevant only to observe that the contention that the Altmark 1 s use of 
neutral waters did not constitute "mere passage," but rather the use of 
neutral waters as a base of operations, was not without substantial founda- 
tion. In retrospect, the Altmark case serves to emphasize once again that 
a belligerent will not readily accede to his enemy's use of neutral waters 
for purposes other than those strictly incidental to the normal requirements 
of navigation. And although the matter cannot be regarded as conclu- 
sively settled it is probable that the present scope of the neutral's duty is 
such that it must prevent passage through its waters by belligerent war- 
ships when such passage has as its purpose the use of these waters as a 
refuge from enemy forces. 



Norway ought at least to have limited her use of Norwegian waters to 14 hours under 
Article 12.." 

The difficulty with Professor Waldock's last point (c) is that it simply assumes that belligerent 
passage cannot constitute the "mere passage" permitted under Article 10 if it is motivated by 
reason of seeking refuge. Yet it is just this point that — however reasonable — cannot be 
regarded as self-evident. Nor is the first stated conclusion (a) compelling, since the relation 
between Articles 10 and iz allows either interpretation — as already noted — thus leaving it to 
the neutral to regulate the time limit allowed for passage through its waters. Waldock further 
argues that: "Norway, in its Neutrality Regulations, including that concerning the Z4 hours' 
rule, made no distinction between entry for passage and entry for other purposes, but the 
evidence seems to point to the conclusion that Norway intended this provision not to apply 
to passage — as was shown in the City of Flint incident." (On the City of Flint, see p. 2.46O1)). 
These points are believed to be somewhat peripheral, however. The central legal issue raised 
by the Altmark incident, and which forms Professor Waldock's second conclusion, is clear: 
are belligerent warships permitted — for any period of time — to use neutral waters for circuitous 
passage in order to escape from enemy forces? The argument Professor Waldock offers in sup- 
port of a negative reply to this decisive question is not easy to refute. 

In Great Britain's note of March 15, 1940 the British Government reiterated its belief that 
"mere passage" must be interpreted to mean "innocent passage," and the latter was defined 
as "passage through such territorial waters as would form part of a ship's normal course from 
the point of her departure to her destination, and in particular through such territorial waters 
as form part of straits which provide access from one area of the sea to another." On the 
relation between Articles 10 and iz the note went on to declare that: "His Majesty's Govern- 
ment regard the question of passage through territorial waters as governed by Article 10 of the 
Convention [Hague XIII] and not by Article iz, and, in their view, the time limit of passage 
is not the fixed one of Z4 hours prescribed by the latter Article but that which results from the 
very nature of 'innocent passage' . . . but Article iz is at any rate a refutation of the conten- 
tion that no time limit exists if the ship does not enter a port or anchorage, and the existence 
of this general prohibition, applicable to both ports and territorial waters, reinforces the view 
which His Majesty's Government hold as to the nature of the passage which is permitted by 
Article 10. 

88 See p. z6z(n). 



239 



b. Belligerent Stay in Neutral Ports and Waters 
(i) Warships 

It has been observed that a neutral state may prohibit altogether the 
passage of belligerent warships through its territorial waters. In like 
manner a neutral may place restrictions upon the entry and stay of bellig- 
erent warships in its waters, ports or roadsteads in excess of the obligations 
imposed by international law, and even forbid altogether such entry and 
stay. 89 It is generally recognized, however, that international practice 
requires that exception be made in the neutrality regulations of states to 
permit the entry of belligerent warships in distress. Entry in distress may 
result from weather or sea conditions, but it may also result from damage 
incurred in battle. Even pursuit by the enemy appears to give belligerent 
warships a right of entry. But this right of entry in distress cannot be 
held to prejudice the measures a neutral state may take once admission into 
its waters and ports has been granted. The belligerent has no right to 
repair the damage he has suffered, to take on needed supplies, or to depart 
freely. And in the event entry has been sought as a result of battle 
damage or of active pursuit by enemy forces a neutral state that has other- 
wise forbidden belligerent entrance into its waters or ports may properly 
intern the vessel, together with its officers and crew. 90 

So far as the scope of neutral duties is concerned Hague XIII is not 
entirely clear as to those circumstances — if any — in which a neutral must 
forbid entry and stay to belligerent warships. Article 12. merely refers to 
the time limits placed upon warships which "remain in" the ports, road- 
steads and territorial waters of neutrals. Article 14 refers to the prolonga- 
tion of neutral stay in beligerent ports "on account of damage or stress of 



89 The right of neutral states to exclude belligerent warships from their waters and ports is 
now generally recognized, though previously subject to some doubt. During the first World 
War the Netherlands' Government did in fact resort to a policy of complete exclusion, exception 
being made only for entry in distress and for vessels employed exclusively for humanitarian 
and scientific purposes. In Harvard Draft Convention on the Rights and Duties of Neutral States in 
Naval and Aerial War (pp. cit., pp. 4x5 ff.), the past practice of states is reviewed. Article 2.6 of 
the Draft Convention states: 

"A neutral state may exclude from its territory belligerent warships other than: 

(a) Warships entering in distress; and 

(b) Warships employed exclusively in scientific or humanitarian missions." 

There do not appear to have been any instances during World War II in which neutrals 
resorted to a policy of complete exclusion. 

In addition, neutrals may — without resorting to complete exclusion — place special restric- 
tions upon certain categories of belligerent warships. During both World Wars a number of 
neutral states — including the United States — prohibited the entry of belligerent submarines 
into their ports or waters, exception being made for distress or force majeure (in which cases the 
submarine was required to navigate on the surface). 

90 See U. S. Naval War College, International Law Situations, 1939, pp. 43-4. A general review 
of the problem of asylum in neutral ports is given in U. S. Naval War College, International Law 
Situations, 1935, pp. 42.-5 3 . 

240 



weather. 91 Neither these nor any other provisions of Hague XIII place 
restrictions upon the possible reasons for permitting entry and stay in 
neutral ports. Presumably, then, the neutral state may permit belligerent 
entry and stay, without liability to immediate internment, even though it 
is clear that this may well serve to provide a warship with a place of refuge 
from enemy forces. The practice of neutral states during the two World 
Wars leaves little doubt as to this conclusion. 92 

Although there is some question as to the applicability of the twenty- 
four hour rule to belligerent passage through neutral waters there is no 
question as to the application of this rule to entry and stay. Unless the 
neutral state expressly provides to the contrary the period of stay in neutral 
ports is limited to twenty-four hours. 93 At the same time, Article 12. of 
Hague XIII provides for certain exceptions to the normal twenty-four 
hours' limit on the period of stay, apart from exceptions that may be 



91 Article 14 reads: "A belligerent ship of war must not prolong its stay in a neutral port 
beyond the period legally allowed except on account of damage or stress of weather. It must 
depart as soon as the cause of the delay is at an end. 

' 'The regulations as to the limitation of the length of time which such vessels may remain in 
neutral ports, roadsteads, or waters, do not apply to ships of war devoted exclusively to reli- 
gious, scientific, or philanthropic purposes." 

92 It may appear inconsistent to refuse a belligerent warship passage through neutral waters, 
when such passage is used in order to escape from an enemy, and yet to allow a belligerent 
warship to stay in neutral ports for precisely the same reason. In part, this may be explained 
by the fact that belligerent warships staying in neutral ports can be subjected to far more 
effective surveillance and control by neutral authorities than would normally prove possible 
with vessels passing through the neutral's territorial waters. In any event, whereas Article 10 
of Hague XIII does expressly restrict passage through neutral waters to "mere passage," no 
specific restrictions are placed upon the possible reasons for belligerent entry and stay in neutral 
ports. And it is clear that the practice of states does not yet permit the assertion that the bellig- 
erent's use of neutral ports as a temporary refuge imposes upon the neutral a duty to intern the 
vessel and its crew. During World War II the Graf Spee incident (see p. Z45 (n)) and analogous 
cases served to emphasize this point. 

93 Smith (op. «>.,p. 154) states that: "The 'twenty-four hours rule' has now been so widely 
adopted in practice that it may be taken as almost equivalent to a general rule. In its normal 
application it means that the warship must leave the neutral port within twenty-four hours 
of receiving notice from the neutral authority, and it is the duty of the neutral to give this 
notice as soon as possible." — No instances are known of neutral states granting a normal stay 
in excess of twenty-four hours during World War II. The General Declaration of Neutrality 
of the American Republics, October 3, 1939, stated on this point that the signatories: "May 
determine, with regard to belligerent warships, that not more than three at a time be admitted 
in their ports or waters and in any case they shall not be allowed to remain for more than 
twenty-four hours. Vessels engaged exclusively in scientific, religious or philanthropic missions 
may be exempted from this provision, as well as those which arrive in distress." text in 
A.J. I. L., 34(1940), Supp., p. 10. The twenty-four hour rule is equally applicable to belligerent 
warships in neutral ports or roadsteads at the outbreak of hostilities. Article 13 of Hague 
Convention XIII declares: "If a Power which has been informed of the outbreak of hostilities 
learns that a belligerent ship of war is in one of its ports or roadsteads, or in its territorial 
waters it must notify the said ship to depart within twenty-four hours or within the time 
prescribed by the local regulations." 

241 



specifically provided for in the legislation of the neutral state. In the first 
place, the twenty-four hours' rule does not apply to belligerent warships 
devoted exclusively to humanitarian (e. g., hospital and relief vessels), 
scientific, or religious purposes. 94 In addition, a belligerent warship may 
have its stay in neutral ports prolonged — according to Article 14 of Hague 
XIII — '"on account of damage or stress of weather." Still further, the 
requirement laid down in Article 16, that a minimum period of twenty-four 
hours must elapse "before the departure of the ship belonging to one 
belligerent and the departure of the ship belonging to the other," may 
also lead to extension of stay in excess of the normal period. 95 Finally, a 
belligerent warship unable to take on the fuel otherwise permitted to it in 
a neutral's port may be permitted by the neutral state to extend its normal 
period of stay by an additional twenty-four hours. 96 

In the event a belligerent warship either enters a neutral port in violation 
of the neutral state's regulations or does not leave a port where it is no 
longer entitled to remain, the neutral state is obliged to intern the vessel, 
together with its officers and crew, for the remainder of the war. This 
duty is a strict one, and the neutral must ensure that the measures it takes 
are adequate to prevent the vessel and its personnel from leaving neutral 
territory. 97 

Once admitted to neutral ports or roadsteads belligerent warships are 
forbidden — according to Article 5 — to commit any acts that might serve 
to turn neutral ports into a base of operations, and it is both the right as 
well as the duty of neutral states to prevent such acts. It is for this reason 
that neutral states must not allow belligerent warships that have once 
entered their territorial waters to communicate in any manner with bellig- 



94 Article 14. 

95 Articles 15 and 16. 

96 Article 19. 

97 Article Z4 outlines the neutral's duties in this respect and may be cited in full: 

"If, notwithstanding the notification of the neutral authorities, a belligerent ship of war 
does not leave a port where it is not entitled to remain, the neutral Power is entitled to take 
such measures as it considers necessary to render the ship incapable of taking the sea during 
the war, and the commanding officer of the ship must facilitate the execution of such measures. 

When a belligerent ship is detained by a neutral Power, the officers and crew are likewise 
detained. 

The officers and crew thus detained may be left in the ship or kept either in another ship or 
on land, and may be subjected to the measures of restriction which it may appear necessary 
to impose upon them. A sufficient number of men for looking after the vessel must, however, 
always be left on board. 

The officers may be left at liberty on giving their word not to quit the neutral territory with- 
out permission." 

Although Article Z4 only speaks of a neutral being "entitled" to intern, the neutral state- 
as emphasized above — is also under the duty to do so. On the disposition to be made of prison- 
ers of war carried on board an interned warship, see p. 1x3 (n). 



242 



erent forces at sea. 98 It is for the same reason that Article 18 of Hague 
XIII forbids belligerent warships to use "neutral ports, roadsteads, or 
territorial waters for replenishing or increasing their supplies of war 
material or their armament, or for completing their crews." 

More difficult, however, are those questions concerning the supplies of 
food and fuel belligerent warships may obtain, and the repairs that may be 
undertaken, in neutral ports. It may appear that the logical consequence 
of forbidding belligerent warships to use neutral waters and ports as a base 
of operations must be to prohibit such vessels from obtaining within 
neutral waters and ports any supplies or repairs. This has not been the 
case. In principle, the right of a neutral state to allow belligerent war- 
ships to take on provisions and fuel, as well as to undertake repairs, is 
firmly established in the traditional law, despite the apparent inconsistency 
between this freedom and the prohibition against allowing belligerents to 
use neutral waters or ports as a base for conducting hostile operations. In 
question is only the extent of the neutral's right to grant supplies, fuel and 
repairs (or, conversely, the scope of the neutral's duty). 

A review of neutral practice indicates no uniformity with respect to the 
amount of supplies and fuel that may be allowed belligerent warships in 
neutral ports. In practice, therefore, the matter of determining the con- 
ditions for replenishment and refueling belligerent warships would appear 
to rest largely within the discretion of the neutral state — a situation that 
can hardly be regarded as satisfactory." 

98 The neutral practice of placing the most severe restrictions upon the use of radio and other 
communications by belligerent warships within neutral waters and ports became almost uni- 
versal in World War II. 

The United States Neutrality Regulations of September 5, 1939 declared that: "All belligerent 
vessels shall refrain from use of their radio and signal apparatus while in the harbors, ports, 
roadsteads, or waters subject to the jurisdiction of the United States, except for calls of distress 
and communications connected with safe navigation or arrangements for the arrival of the 
vessel within, or departure from, such harbors, ports, roadsteads, or waters, or passage through 
such waters; provided that such communications will not be of direct material aid to the bellig- 
erent in the conduct of military operations against an opposing belligerent. The radio of bellig- 
erent merchant vessels may be sealed by the authorities of the United States, and such seals 
shall not be broken within the jurisdiction of the United States except by proper authority of 
the United States." — Substantially similar provisions were laid down in Article 12. of the 
common neutrality regulations of the Northern European Neutrals. A. J. I. L.,$i. (1938) 
Supp. pp. 141 ff. 

99 Article 19 of Hague XIII provides, in part, that: "Belligerent ships of war cannot revictual 
in neutral ports or roadsteads except to complete their normal peace supply. Similarly these 
vessels can take only sufficient fuel to enable them to reach the nearest port of their own country. 
They may, on the other hand, take the fuel necessary to fill up their bunkers properly so called, 
when in neutral countries which have adopted this method of determining the amount of fuel 
to be supplied." But neither Article 19 nor — for that matter — Article 2.0 ("Belligerent ships 
of war which have taken fuel in a port of a neutral Power can not within the succeeding three 
months replenish their supply in a port of the same Power") can be considered conclusive 
statements of the present law. — Article 10 of the 19x8 Habana Convention on Maritime Neu- 

399334—57- 17 243 



Equally unsettled is the question of the repairs a neutral may permit 
belligerent warships to make while in its ports. Article 17 of Hague 
Convention XIII merely states that belligerents "can carry out only such 
repairs as are absolutely necessary to render them seaworthy, and cannot 
add in any manner whatsoever to their fighting force. The neutral authori- 
ties shall decide what repairs are necessary and these must be carried out 
with the least possible delay." No distinction is made between the causes 
of damage for which repairs are made absolutely necessary. It is altogether 
possible, then, to interpret Article 17 as permitting a neutral to allow 
belligerent warships to make repairs which result from damage incurred in 
battle. A warship does not necessarily add to its "fighting force" any 
more by repairing damage due to enemy fire than by repairing damage due 
to the sea. Nor does Article 14 clarify the matter in any real way, since in 
allowing a belligerent warship to extend its stay in port "on account of 
damage" no specification is made as to the causes of damage. Hence, 
taking Articles 17 and 14 together it is entirely plausible to interpret Hague 
XIII as permitting the repair of battle damage in neutral ports, and as 
further permitting belligerent warships to remain in neutral ports for a 
period in excess of twenty-four hours in order to effect such repairs. 

In practice, the tendency of many states when neutral has clearly been 
toward restricting the repairs belligerents may make in their ports and of 
forbidding altogether the repair of damage that has been incurred in 
battle. 1 But it is more than doubtful that the law presently forbids the 

trality allows the neutral to establish the conditions for replenishing and refueling, and in the 
absence of neutral regulations permits belligerent warships to "supply themselves in the manner 
prescribed for provisioning in time of peace." — The actual practice of states has been less diverse 
than might be anticipated. During World War II many of the neutrals — including the United 
States, the Northern European Neutrals and a number of the Latin American countries — allowed 
replenishing supplies of food to that of peacetime standards and refuelling in quantities 
sufficient only to carry the vessel to the nearest port of her own country (or, in certain cases, 
to the nearest port of an ally). 

1 Article 9 of the 1918 Habana Convention on Maritime Neutrality provided that: 

"Damaged belligerent ships shall not be permitted to make repairs in neutral ports beyond 
those that are essential to the continuance of the voyage and which in no degree constitute 
an increase in its military strength. 

Damages which are found to have been produced by the enemy's fire shall in no case be 
repaired. 

The neutral state shall ascertain the nature of the repairs to be made and will see that they 
are made as rapidly as possible." 

The United States Neutrality Regulations of September 5, 1939 declared, with respect to 
repairs: "No ship of war of a belligerent shall be permitted, while in any port, harbor, road- 
stead, or waters subject to the jurisdiction of the United States, to make repairs beyond those 
that are essential to render the vessel seaworthy and which in no degree constitute an increase 
in her military strength. Repairs shall be made without delay. Damages which are found to 
have been produced by the enemy's fire shall in no case be repaired." Similarly, the neutrality 
regulations of the Northern European Neutrals during World War II prohibited the repair of 
damage incurred in battle. 

244 



repair of battle damage in neutral ports, and, in fact, some states when 
neutral still allow such repairs. 2 Here again the only conclusion possible 
is that, as matters now stand, the scope of the neutral's duties are only 
vaguely defined. In permitting belligerent warships to repair damage 
incurred at sea the neutral state retains a large measure of discretion, de- 
spite the injunction to permit only such repairs as are absolutely necessary 
to render belligerent warships seaworthy. 3 

(ii) Prizes 
The entry and stay of prizes in neutral ports are dealt with in Articles 
2.1, 2.2., and 13 of Hague Convention XIII. In many respects, the position 
of belligerent prizes in neutral ports is similar to that of belligerent war- 
ships. Nevertheless, there remain certain differences that require brief 
consideration. 



2 As illustrated by the incident involving the German battleship Admiral Graf Spee. See 
Hackworth, op. cit., Vol. VII, pp. 450-1. On December 13, 1939, the Graf Spee entered the 
Uruguayan port of Montevideo, following an engagement with British naval forces. A request 
was made to the Uruguayan authorities to permit the Graf Spee to remain fifteen days in port 
in order to repair damages suffered in battle and to restore the vessel's navigability. The 
Uruguayan authorities granted a seventy-two hour period of stay. Shortly before the expira- 
tion of this period the Graf Spee left Montevideo and was destroyed by its own crew in the Rio 
de la Plata. The British Government, while not insisting that Article 17 of Hague XIII clearly 
prohibited the repair of battle damage, did point to the widespread practice of states when 
neutral in forbidding the repair of battle damage in their ports. In accordance with this 
practice it was suggested that the Graf Spee's period of stay be limited to twenty-four hours. 
Uruguay maintained, however, that the scope of the neutral's duty required it only to prevent 
those repairs that would serve to augment the fighting force of a vessel but not repairs necessary 
for safety of navigation. — The incident is noteworthy as an example of the extent to which 
belligerents seemingly can make use of neutral ports without violating the prohibition against 
using neutral territory as a base of naval operations. 

3 "May one say that a neutral state may sanction such repairs as they are needed to make a 
vessel seaworthy, but not such further repairs as may be needed to make her 'fightworthy'." 
Oppenheim-Lauterpacht, op. cit., p. 709. Kunz (pp. cit., pp. Z49-54) would go further still and 
apply the distinction between "seaworthiness" and "fightworthiness" to food and fuel as well 
as to repairs. It is evident, however, that in a great number of cases to make a vessel seaworthy 
is, in effect, to make her fightworthy. And Hyde (pp. cit., p. 1x69) correctly observes that: 
"In a strict sense, any repairs productive of seaworthiness, irrespective of the cause of damage, 
necessarily increase the fighting force of the recipient if it is otherwise capable of engaging in 
hostilities. ' ' Articles 34 and 36 of the Harvard Draft Convention on the Rights and Duties of Neutral 
States in Naval and Aerial War (op. cit., pp. 46Z ff.), are indicative of the dissatisfaction felt with 
respect to the present rules governing refuelling and the making of repairs in neutral ports. 
Whereas Article 34 stipulates that "a condition of distress which is the result of enemy action 
may not be remedied and if the vessel is unable to leave it shall be interned," Article 36 declares 
that the neutral state shall not allow belligerent warships (other than vessels devoted exclusively 
to scientific or humanitarian purposes) "to take on any supply of fuel or otherwise to augment 
its fighting strength." Neither draft article can be said to be declaratory of existing law, 
though they are, as the commentary points out, "expressive of a view, which has been re- 
flected in some international practice, that any aid afforded to belligerent warships in neutral 
ports does in reality compromise the neutrality of the State" (p. 477). 

245 



Article 2.1 declares that a prize may be brought into a neutral port "only 
on account of unseaworthiness, stress of weather, or want of fuel or pro- 
visions," and that it must leave "as soon as the circumstances which justi- 
fied its entry are at an end." In enumerating the possible reasons for the 
entry of prizes into neutral ports Article 2.1 is — if anything — more restric- 
tive than the provisions dealing with the reasons for entry of belligerent 
warships. 4 And if a prize is brought into a neutral port for reasons other 
than those described above it is the duty of the neutral state — according to 
Article 2.2. — to release the prize, together with its officers and crew, and to 
intern the prize crew. 5 The same duty falls upon the neutral state in the 
event that a prize will not leave a neutral port once the circumstances which 
justified its entry are at an end. 

So much is clear. The difficulty is created by Article 2.3 in that it allows 
a neutral state to permit belligerents to send prizes to a neutral's ports 
"there to be sequestrated pending the decision of a prize court." It is 
evident that this provision, if widely accepted by neutral states, would 
serve to restrict the effectiveness of Articles 2.1 and 2.1 and would provide a 
neutral state permitting sequestration in its ports with an important 
opportunity for assisting the naval operations of belligerents. Article 2.3 
has never been accepted by several of the major naval powers, however, 
and during the two World Wars practically all neutral states did in fact 
forbid belligerents from laying up prizes in their ports pending the decisions 
of prize courts. 6 At the same time, it cannot as yet be said that the practice 



4 Thus Article 11, taken by itself, excludes the use by prizes of neutral ports as a temporary 
refuge from a pursuing enemy, although such use is not prohibited to warships. In fact, whereas 
belligerent warships may enter neutral ports for any number of reasons, without becoming 
liable to internment, prizes are limited to those reasons specified in Article zi (excepting, for 
the moment, Article Z3). 

5 Thus when on November 4, 1939 the Norwegian Government released the American 
merchant vessel City of Flint, together with its officers and crew, and interned the German prize 
crew, it clearly acted in accordance with Articles zi and zz of Hague XIII. The entry of the 
City of Flint into Haugesund on November 3, 1939 was not justified by reason of any of the cir- 
cumstances laid down in Article zi. During the previous month the vessel had put into the 
Norwegian port of Tromsoe for fresh water and had been allowed to depart after having taken 
on needed supplies. The City of Flint had then proceeded to the Russian port of Murmansk 
where Soviet authorities after having first interned the German prize crew and informed the 
American captain of the City of Flint that he might at once take the vessel out, later reversed 
this decision and placed the German prize crew again in charge. Although the episode at 
Murmansk remained obscure it is evident that the Germans had no valid reason for putting 
into the port and that the Russian authorities were thereby derelict in their neutral duties in 
not releasing the vessel and its crew, and interning the German prize crew. The incident, 
together with diplomatic correspondence, is summarized in Hackworth, op. cit., Vol. VII, 
pp. 48Z-8. Other accounts are given in Hyde, op. cit., pp. ZZ77-8Z and U. S. Naval War College, 
International Law Situations, 1959, pp. Z4-8. 

6 The United States, Great Britain and Japan refused to accept Article Z3 of Hague XIII. 
During World War I the position of the United States was made clear in the well-known case 



246 



of permitting sequestration of prizes in neutral ports is forbidden to neutral 
states, either through the invalidation of Article 2.3 or through the emerg- 
ence of a contrary practice that may be considered sufficient to constitute 
a rule of customary international law. 7 

(iii) Armed Belligerent Merchant Vessels 
Discussion over the status of armed belligerent merchantmen in neutral 
ports has frequently suffered from the failure to distinguish sufficiently 
between the scope of a neutral state's duties and the extent of its rights. 
Whereas there is legitimate room for inquiry into the present scope of the 
neutral's duty in receiving armed belligerent merchant vessels into its 
waters and ports, there ought to be little doubt as to the scope of a neutral's 
rights. It is apparent that with respect to the merchant vessels of other 
states the rights of a neutral can be no less than they are in time of peace. 
Apart from the duty to accord to the merchant vessels of all states freedom 
of innocent passage through its territorial waters there is no further duty 
of a state to allow merchant vessels into its ports. So long as it acts 
impartially a neutral may place special restrictions upon the entry and stay 
of armed belligerent merchantmen or even close its ports entirely to the 
latter. 8 The difficulty, of course, concerns the scope of the neutral's duties. 
The obligations imposed upon neutral states by Hague Convention XIII 

of the British steamship Appam. — In the United States Neutrality Proclamation of September 5, 
1939, Articles 2.1 and 2.2. of Hague XIII are repeated almost verbatim. 

7 Thus while Article 19 of the Harvard Draft Convention on the Rights and Duties of Neutral 
States in Naval and Aerial War (pp. cit., p. 446) states that: "A neutral state shall either exclude 
prizes from its territory or admit them on the same conditions on which it admits belligerent 
warships," the commentary to this article observes: "... Article X3 (Hague XIII) has not 
been widely adopted in practice and strong objections have been raised against it. On the 
other hand, it could not be said that a neutral state would violate international law if it acted 
upon the basis of Article 13. In this unsatisfactory state of the law, it seems permissible to 
suggest a new rule for adoption . . ." (p. 448). Most writers, however critical of Article Z3, 
refrain from stating that a neutral state would violate its duties were it to permit the sequestra- 
tion of prizes in its ports. 

8 During the first World War the Government of the Netherlands did in fact choose to close 
its ports to all armed belligerent merchant vessels. In a note of April 7, 1915 the Netherlands 
Government stated that vessels provided with armament and capable of committing acts of 
war would be assimilated to warships and thereafter forbidden to enter the ports and territorial 
waters of the Netherlands. In reply, the British Government took the position that British 
merchant vessels were armed solely for purposes of self-defense, that the law of nations per- 
mitted this measure, and that the British vessels so armed could not be regarded as assimilated 
to the status of warships. Even assuming the validity of these contentions it is difficult to see 
how they can limit the right of a neutral state to exclude armed belligerent merchant vessels 
from its ports. This last point was emphasized by the Netherlands Government in a note of 
August 15, 1917, in which it was declared that: "The law of nations does not prescribe for 
neutrals the duty either of admitting armed belligerent merchant vessels within their jurisdic- 
tion, or of refusing them entry. It leaves them to determine for themselves their line of conduct 
on this point." cited in Hackworth, op. cit., Vol. VII, p. 498.— The only possible objection a 
belligerent could legitimately raise would be over the neutral's denial of innocent passage 
through its territorial waters to armed belligerent merchant vessels. 

247 



expressly refer only to the entry and stay of "belligerent men-of-war" 
(and prizes) in neutral waters and ports. According to the traditional law 
the restrictions applicable to warships when in neutral jurisdiction are 
not applicable to belligerent merchant vessels, privately owned and 
engaged in trade. The latter enjoy, in principle, the same treatment in 
neutral ports as the merchant vessels of other neutral states. 

At the same time, there has been little disposition to deny that the 
restrictions a neutral state must apply to warships in its ports and waters 
apply equally to belligerent vessels which, though not qualifying as war- 
ships in the formal sense and therefore not competent to exercise belligerent 
rights at sea, 9 directly assist a belligerent's naval operations. Thus a 
belligerent merchant vessel serving in the employ and acting under the 
direction of belligerent warships must be treated by neutral states in a 
manner similar to belligerent warships. 10 The reason for this similarity 



9 See pp. 38-40. 

10 The vessels referred to in the text are not "auxiliary warships" in the strict sense of that 
term, that is they are not commissioned naval vessels, commanded by commissioned naval 
officers and flying the naval ensign. With respect to the latter there is no doubt that they 
are warships within the meaning of Hague Convention XIII, even though they merely perform 
auxiliary services to fighting vessels (i. e., supply tenders, colliers, transports). In question 
here is the status of vessels that perform the same auxiliary services to warships though not 
formally incorporated into the naval forces of a belligerent. In British practice these vessels 
are known as "fleet auxiliaries;" they do not fly the flag of a warship nor are they competent 
to exercise belligerent rights at sea. Nevertheless, with respect to neutrals they are in the same 
position as warships. 

When the United States has been neutral, merchant vessels serving as auxiliaries to warships 
have been subject to the same restrictions as warships. Thus on November 8, 1914 the German 
steamship Locksun was interned at Honolulu for not having conformed to the rules governing 
warships. The Locksun served as a supply ship for the German warship Geier. The details 
of the incident are given in Hackworth, op. cit., Vol. VII, pp. 506-8. The United States neu- 
trality regulations of September 5, 1939 provided that: "The provisions of this proclamation 
pertaining to ships of war shall apply equally to any vessel operating under public control 
for hostile or military purposes." 

During World War II the incident involving the German merchant vessel Tacoma provided 
a further illustration of the treatment accorded by neutrals to merchant vessels serving, in 
effect, as a naval auxiliary to a belligerent's forces. The Tacoma was found to be acting in 
the capacity of an auxiliary to the German battleship Graf Spee. For this reason the Uruguayan 
Government gave the Tacoma, upon putting into Montevideo on December 30, 1939, twenty- 
four hours within which to depart or suffer internment. On January 1, 1940 the vessel was 
interned. — In the General Declaration of Neutrality of the American Republics, approved 
October 3, 1939, it was declared that the American Republics "may submit belligerent merchant 
vessels, as well as their passengers, documents and cargo, to inspection in their own ports; 
the respective consular agent shall certify as to the ports of call and destination as well as to the 
fact that the voyage is undertaken solely for purposes of commerical interchange. They may 
also supply fuel to such vessels in amounts sufficient for the voyage to a port of supply and call 
in another American Republic, except in the case of a direct voyage to another continent, 
in which circumstances they may supply the necessary amount of fuel. Should it be proven that 
these vessels have supplied belligerent warships with fuel, they shall be considered as auxiliary 
transports." A. J. I. L., 34 (1940), Supp, p. 11. 

248 



in treatment may be attributed to the obligation imposed upon the neutral 
state to prevent its waters and ports from becoming a belligerent base of 
operations; an obligation that would be seriously restricted if the latter were 
free to permit merchant vessels serving as auxiliaries to warships to make 
unlimited use of neutral ports. 

These observations would appear to bear directly upon the scope of the 
neutral's duties with respect to armed belligerent merchant vessels. The 
fact that such vessels do not possess the status of warships need not prove 
decisive in determining the treatment they must receive while in neutral 
waters and ports. It is rather the use to which the vessel's armament has 
been, or clearly will be, put that must form the guiding consideration. If 
such use is for offensive purposes the neutral state is obliged to assimilate 
armed belligerent merchant vessels to the position of warships. To act 
otherwise would result in turning neutral jurisdiction into a base for the 
belligerent's naval operations. 11 

It is in the application of this principle to armed merchant vessels that 
difficulties have arisen. The belligerent state that has armed its merchant 
vessels will naturally insist — as did Great Britain in both World Wars — 
that such armament is only intended for defensive purposes, and will rely 
upon the long established practice under which defensively armed merchant- 
men have enjoyed the same treatment while in neutral ports as given to 
other merchant vessels. The neutral state, on the other hand, must run 
the risk of being charged with unneutral conduct if it is established that 
the armed merchant vessels it has received in its ports, and treated as 
ordinary merchant vessels, have in fact been used for offensive operations 
at sea. 12 Neutral states have not been insensitive to the liability they may 
thereby incur, and the attempt has therefore been made to establish criteria 
that would enable the neutral state to determine — in the absence of other- 

11 In the course of the prolonged diplomatic exchange between the United States and Great 
Britain during the years 1914-16 the principle enunciated above was not subject to dispute. 
In a lengthy memorandum of March 2.5, 1916 the Department of State declared, in part, that: 
"Merchantmen of belligerent nationality, armed only for the purposes of protection against 
the enemy, are entitled to enter and leave neutral ports without hindrance in the course of 
legitimate trade. Armed merchantmen of belligerent nationality, under a commission or 
orders of their government to use, under penalty, their armament for aggressive purposes, or 
merchantmen which, without such commission or orders, have used their armaments for ag- 
gressive purposes, are not entitled to the same hospitality in neutral ports as peaceable armed 
merchantmen." cited in Hack worth, op. at., Vol. VII, p. 495. 

12 It has been stated that neutral states "are under no imperative necessity to ascertain, at 
their peril, the nature and purpose of the armaments of the merchant vessel. There seems 
therefore to be no valid reason, dictated by International Law, for departing from the estab- 
lished practice under which defensively armed merchantmen may be admitted to neutral ports 
on the same conditions as other merchant-vessels so long as there is no conclusive proof that 
the particular vessel has used her armaments for the purposes of attack." Oppenheim-Lauter- 
pacht, op, cit., p. 711. It is difficult to share this view regarding the scope of the neutral's 
duties. On the contrary, the neutral state would appear to be under the obligation to take 
active measures to ascertain the nature and purpose of such armament. 

249 



wise conclusive evidence — the offensive or defensive nature of the armament 
carried by belligerent merchant vessels. 13 In practice, however, it has 
proven next to impossible to establish objective criteria enabling neutral 
states to draw a rational distinction between armament used solely for 
defensive rather than for offensive purposes. 

It is submitted that a proper perspective of the problems involved in 
dealing with the status of armed belligerent merchantmen in neutral ports 
and waters cannot be gained without adequate recognition of the circum- 
stances that have so radically altered the position traditionally occupied 
by belligerent merchant vessels. The nature of this transformation has 
already been indicated. 14 Here it is sufficient to obesrve that the extent to 
which the merchant vessels of belligerents were integrated into the military 
effort during World War II left little doubt as to the purposes for which 
armament would be used. There is, therefore, a distinct air of unreality in 
the continued attempts to analyze the position of armed belligerent mer- 
chantmen in neutral ports and waters by the assumption of conditions which 
have not obtained since the outbreak of World War I. In an earlier period 
there was legitimate reason to inquire into the nature of the armament 
carried by a belligerent merchant vessel. During the nineteenth century 
such armament — if carried — would generally have been purchased at the 
expense of the owner of the vessel, manned by members of his crew, and 
used at his discretion. At present the armament of merchant vessels is 
supplied by the state, manned by naval gun crews, and used in accordance 
with a plan established by the military authorities of the state. Hence, 
even if it is assumed that the armament of belligerent merchant vessels is 
used solely for defensive purposes — and on this point there is abundant 

13 It would serve little purpose to review the many attempts made to reach such determina- 
tion, in the absence of direct evidence in support of the offensive nature of a vessel's armament. 
During the initial stages of World War I the attempt was made to make motive the test, but it 
soon became apparent that this test posed insurmountable difficulties in practice. The attempt 
was therefore made to overcome these difficulties by setting out certain objective criteria which 
would enable the neutral to establish the "defensive" or "offensive" nature of the armament 
(e. g., number and size of guns, where mounted, how manned, and amount of ammunition). 
When the first World War came to a close the problem had not yet been resolved satisfactorily, 
and with the outbreak of war in 1939 it was once again taken up. Many neutral states, while 
assimilating "offensively" armed belligerent merchantment to the position of warships, gave 
no indication of the means to be used in determining the offensive purpose of armament. Thus 
the neutrality regulations of the Northern European Neutrals merely provided, in common 
Article 3, that: "Access to . . . ports or to . . . territorial waters is likewise prohibited to 
armed merchant ships of the belligerents, if the armament is destined to ends other than their 
own defense." A. J. I. L., $i (1938), Supp, p. 143. — In the General Declaration of Neutrality 
of the American Republics, October 3, 1939, the latter agreed not to "assimilate to warships 
belligerent armed merchant vessels if they do not carry more than four six-inch guns mounted 
on the stern, and their lateral decks are not reinforced, and if, in the judgment of the local 
authorities there do not exist circumstances which reveal that the merchant vessels can be 
used for offensive purposes." A. J. I. L., 34 (1940), Supp., pp. ii-ix. 

14 See pp. 57-70. 

250 



evidence to the contrary 15 — the fact remains that such use forms a definite 
part of the military operations of the belligerent. For this reason alone 
the continued relevance of attempts to determine the defensive character 
of armament must be seriously questioned. Despite these considerations, 
neutral states continue to base their treatment of armed belligerent merchant 
vessels upon standards that have little or no application to the circum- 
stances under which modern naval warfare is conducted. 16 

3 . Restrictions On the Use of Neutral Air Space 

The numerous difficulties attending the determination of the extent to 
which belligerent warships may make use of neutral jurisdiction find little 
parallel in aerial warfare. The practices of states during World Wars I 
and II may be regarded as having firmly established both the right as well 
as the duty of the neutral state to forbid the entrance of belligerent military 
aircraft into its air space. 17 In consequence, the neutral state is obliged to 
use the means at its disposal to prevent the entry of belligerent military 
aircraft, to compel such aircraft to alight should they once succeed in 
unlawfully penetrating neutral air space, and, once compelled to land, to 
intern the aircraft together with its crew. 18 

There are, however, certain peripheral questions that have yet to be 
clearly and definitely resolved. One of these questions relates to the status 
of belligerent military aircraft in neutral territory at the time of the out- 
break of hostilities. It has been suggested that in this instance a brief 
period of grace — usually twelve hours — should be granted such aircraft, 
during which period they may be permitted to leave neutral jurisdiction. 19 
This suggestion follows a parallel rule applied to belligerent warships in 
neutral ports, the latter being accorded a twenty-four hour period in which 



15 See pp. 57-70. 

16 Here again, the gap between the assumptions underlying the traditional law and the 
conditions characteristic of modern naval warfare will serve only to defeat the purposes of 
the traditional law. Nevertheless, it cannot be said that the few attempts to rectify this situa- 
tion have had any considerable effect. Although Article 12. of the 192.8 Habana Convention 
on Maritime Neutrality declared that where "the sojourn, supplying, and provisioning of 
belligerent ships in the ports and jurisdictional waters of neutrals are concerned, the provisions 
relative to ships of war shall apply equally to armed merchantmen," this provision was not 
accepted by the United States. Nor did it receive the acceptance of an appreciable number of 
other American states. — On the outbreak of war in 1939 the Harvard Draft Convention on Rights 
and Duties of Neutral States in Naval and Aerial War (op. cit., pp. 435-47) suggested that: "A 
neutral State shall either exclude belligerent armed merchant vessels from its territory or admit 
such vessels on the same conditions on which it admits belligerent warships." The arguments 
presented therein on behalf of this recommendation are believed to be sound. During World 
War II, however, the general practice of neutrals was — if anything — toward a relaxation in 
the attitude previously manifested toward armed belligerent merchant vessels. 

17 See, generally, Spaight, op. cit., pp. 410 ff. 

18 Law of Naval Warfare, Article 444 a, b. 

19 Harvard Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War, op. cit.> 
p. 764, Article 94 and comment. 

251 



to leave these ports and neutral territorial waters. On the other hand, it has 
been argued that the neutral state ought immediately to intern all bel- 
ligerent military aircraft found within its jurisdiction at the outbreak of 
war. 20 It does not appear possible to endorse either position at the present 
time, though it is probably safe to assert that a neutral may (even if not 
strictly obliged to) resort to immediate internment. 

A further question concerns the entry in distress of belligerent military 
aircraft. Does the duty of a neutral to prevent belligerent military aircraft 
from entering its jurisdiction extend to such aircraft as are in evident 
distress? Here again, no categorical answer as to the scope of the neutral's 
duty seems possible, although it is doubtful that a neutral state violates 
any duty in permitting entry in distress. The neutral state is bound, of 
course, to intern the aircraft and its crew. Thus the matter of entry in 
distress in aerial warfare must be clearly distinguished from entry in distress 
in naval warfare. Whereas belligerent warships in distress enjoy a right of 
entry into neutral waters and ports, the entry of belligerent aircraft within 
neutral jurisdiction, even though in distress, is — at best — a matter within 
the neutral's discretion. 21 In addition, whereas in naval warfare the 
neutral state may or may not intern the belligerent vessel and crew seeking 
entry in distress, in aerial warfare the neutral must intern the aircraft 
together with its crew. 22 

F. BELLIGERENT INTERFERENCE WITH PRIVATE NEUTRAL 
TRADE; NEUTRAL DUTIES OF ACQUIESCENCE 

It has been observed earlier that whereas the neutral state is obliged to 
abstain from furnishing belligerents with a wide range of goods and services 

20 Although the 19x3 Hague Rules of Aerial Warfare contain no specific provision on this 
point, the report of the Commission of Jurists notes — in connection with Article 41 — that the 
"obligation to intern covers also aircraft which were within the neutral jurisdiction at the 
outbreak of hostilities." U. S. Naval War College, International Law Documents, 1924, p. 130. 

21 Spaight (op. cit., p. 436) is of the opinion that the "highest that one can put the neutral 
obligation is that asylum should be granted in all cases of evident distress, so far as the circum- 
stances allow this obvious concession to humanitarian claims to be made. The neutral authori- 
ties remain bound, of course, to apprehend and intern the aircraft and its crew in such cases, as 
well as in those of error on the part of the airmen, loss of way, or miscalculation of the exact 
boundary line." — During World War II there were several reported incidents of neutral states 
employing measures of force to drive away belligerent military aircraft seeking entry into 
neutral jurisdiction for reasons of distress. 

22 To the above stated rules two exceptions may be noted. Aircraft attached to a warship 
may enter neutral waters and ports so long as such aircraft are, and remain, in physical contact 
with the warship. In this circumstance aircraft are considered merely as items in the equip- 
ment of the vessel, and the only question is whether the vessel itself has lawfully entered neutral 
jurisdiction. Finally, Article 40 of the 1949 Geneva Convention for the Amelioration of the 
Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea provides 
that, subject to such regulations and restrictions as the neutral may see fit to apply equally to 
all belligerents, the medical aircraft of belligerents may pass over, or land in, neutral territory 
(see pp. 1x9-31). 

252 



it is normally under no obligation to prevent its subjects from undertaking 
these same activities. Belligerents are permitted, however, to take certain 
measures to prevent the subjects of a neutral state from rendering various 
forms of assistance to an enemy. The neutral state, in turn, is obliged to 
acquiesce in the exercise by belligerents of repressive measures international 
law permits the latter to take against neutral merchantmen engaged in the 
carriage of contraband, breach — or attempted breach — of blockade, or the 
performance of unneutral service. 23 

23 It remains a matter of some controversy among writers as to the proper characterization 
of the acts falling under the categories enumerated above. The weight of opinion in the past 
has been that acts constituting contraband carriage and blockade breach ought not to be re- 
garded as unlawful under international law but only — if at all — under national law. In large 
measure, this opinion has been influenced by the consideration that international law does not 
obligate neutral states to forbid their subjects from engaging in the above mentioned activities 
(although a neutral state may forbid these activities on the part of its subjects). From this 
point of view, the repressive measures international law permits belligerents to take against 
neutral nationals undertaking carriage of contraband is a right corresponding to the neutral 
state's duty of acquiescence. But the belligerent cannot complain to the neutral state for having 
failed to prevent the acts in question. On the other hand, the individuals who carry contra- 
band or undertake to break blockade are held to act at their peril; they perform a "risky" act, 
though one allegedly not forbidden by international law, and if caught must take the conse- 
quences of being deprived of their property (cargo or ship, or both). 

The alternate view, in holding that carriage of contraband and breach of blockade are 
acts forbidden by international law, declares that it is by no means necessary that international 
law obligate the neutral state to prevent the commission of these acts in order that they may 
be considered unlawful. Thus a neutral national engaged in carriage of contraband may act 
in accordance with the law of his state, which need not and does not prohibit the act, and yet 
perform an act forbidden by international law. (In the same sense the act of piracy may be 
considered as forbidden by international law, though no state is obligated either to prohibit 
this act in its municipal law or to prevent its subjects from committing acts of piracy.) The 
neutral state need not, and is not, obligated to prevent all acts of its subjects which belligerents 
are entitled to repress (or, from this alternate point of view, to punish). Instead, it is bound 
only to prevent part of them, whereas the prevention and repression of other acts are left to the 
belligerents. 

Although the theoretical implications of this controversy are not without a substantial 
measure of interest, the practical significance of whether or not contraband carriage, blockade 
breach and unneutral service are considered as acts forbidden by international law is negligible. 
From both points of view the nature and extent of the measures a belligerent is permitted 
to take against neutral commerce remain the same. It may be observed, however, that inter- 
national law unquestionably does establish the latitude permitted belligerents in controlling 
the trading activities of neutrals. Similarly, international law determines — though within 
varying limits — the consequences belligerents may attach to these activities. It is true that 
these consequences are realized only by virtue of judgments rendered by national prize courts, 
judgments whose immediate basis must be found in municipal law. Nevertheless, in this 
instance the judgment of a national prize court may properly be regarded as the application of 
international as well as national law. Indeed, states are clearly under the obligation to insure 
that the substantive law applied by their prize courts conforms with international law. Hence, 
the application of international law is carried out through its prior transformation into na- 
tional law, a transformation that ought not to be obscured for the reason that prize courts 
derive their immediate power from national law and are bound to apply this law even if oc- 
casionally inconsistent with international law. 

253 



So long as a belligerent confines the measures it takes against the trade 
of neutral subjects to the limits clearly allowed by international law there 
will be little occasion for controversy. Normally, the relationship in- 
volved will primarily concern the belligerent and private neutral traders. 
When, however, the neutral state considers a belligerent to have acted in 
excess of the limits prescribed by international law, when the neutral state 
considers a belligerent as endeavoring either to suppress legitimate neutral 
trade or to prevent illegitimate neutral trade though by means of otherwise 
unlawful measures, the matter then directly involves the duties and rights 
of belligerent and neutral states. This is so for the reason that it is a duty 
of belligerents to abstain from interfering with neutral commerce which in- 
ternational law does not regard as of such a character to justify belligerent 
measures of suppression, and a right of neutral states to demand that bellig- 
erents refrain from interfering with the legitimate commerce of their sub- 
jects. In addition, even with respect to neutral trade belligerents are per- 
mitted — in principle — to suppress, neutral states have a right to insist that 
belligerents employ only those measures of suppression as are sanctioned 
by law. 

At the same time, the belligerents' duty to abstain from the suppression 
of legitimate neutral commerce is not without limitation. The neutral 
state is bound not only to acquiesce in certain permitted forms of belligerent 
interference with private neutral trade; it is also obliged to employ the 
means at its disposal to prevent belligerent encroachment upon established 
neutral rights at sea. Should the neutral state either openly permit or 
tacitly acquiesce in the unlawful interference with its trade by one bel- 
ligerent it cannot complain if the other belligerent — thereby placed at a 
grave disadvantage — resorts to otherwise unlawful measures against 
neutral trade by way of reprisal against the neutral. On this point at least 
there would appear to be widespread agreement. 

But beyond this point the greatest uncertainty — and controversy — exists 
even today with respect to the precise scope of the belligerent's duty to 
abstain from interfering with legitimate neutral commerce. In general, 
belligerents have sought to qualify their obligation by contending that the 
restriction of neutral rights may prove justified either as a necessary inci- 
dence to retalitory measures taken in response to the unlawful behavior of 
an enemy (and even though such behavior has been directed, in the main, 
only against the retaliating belligerent) or as a result of the ineffectiveness 
of neutral efforts to prevent continued belligerent encroachment upon the 
former's rights. 

It should be apparent that the position of the neutral is strongest in 
insisting that inter-belligerent reprisals — in the strict sense — cannot of 
themselves provide injured belligerents with a legitimate basis for restrict- 
ing neutral rights. The neutral state, it has been asserted, cannot be held 
responsible in any way for unlawful belligerent measures that are directed 

254 



exclusively — or even principally — against an enemy. Nor is this con- 
clusion modified, from the neutral's point of view, by virtue of the fact 
that a belligerent may be able to bring the greatest pressure to bear upon 
an offending enemy through measures taken against neutral commerce. 24 

Even if accepted, however, the neutral's position with respect to the 
legitimacy of inter-belligerent reprisals which adversely affect neutral rights 
may prove of no more than limited importance. In practice, belligerents 
have had a much stronger basis upon which to limit the scope of their 
obligations toward the commerce of neutrals. Since the unlawful conduct 
of a belligerent in warfare at sea will seldom be directed solely against an 
enemy, but will bear upon neutral commerce as well, the injured belligerent 
has insisted that his continued respect for neutral rights is dependent upon 
the effectiveness of neutral efforts in preventing the further occurrence of 
the unlawful measures imputed to an enemy. 25 

24 Hyde (op. cit., p. Z345) gives expression to the position summarized above by stating that: 
"It is a sound proposition that the illegal conduct of its enemy in prosecuting a war does not 
excuse a response by the offended belligerent which, insofar as it returns like for like, or other- 
wise marks a departure from the requirements of the law, involves an impairment of obliga- 
tions normally due to unoffending and non-participating powers." A similar view may be 
found in the Harvard Draft Convention on Rights and Duties of Neutral States in Naval and Aerial 
War (op. cit., pp. 392-419), where the conflicting — and frequently obscure — attitude of neutrals 
and belligerents is given careful and illuminating historical review. Article 13 of the Draft 
Convention declares: "A belligerent is not relieved of its duty to respect the rights of a neutral 
State as provided in this Convention, even when engaged in acts of reprisal or retaliation for 
illegal acts of its enemy." Certainly in the past this has always represented the position of the 
United States when neutral. Thus the British Reprisals Order of Nobember 17, 1939 (see p. 
312.) brought forth the following statement by the American Government: "Whatever may 
be said for or against measures directed by one belligerent against another, they may not right- 
fully be carried to the point of enlarging the rights of a belligerent over neutral vessels and 
their cargoes, or of otherwise penalizing neutral states or their nationals in connection with 
their legitimate activities." cited in Hackworth, op. cit., Vol. VII, p. 145. 

25 In both World Wars this provided perhaps the principal belligerent argument in justifi- 
cation of otherwise unlawful restrictions upon neutral trade. During World War I the British 
Prize Court gave expression to, and endorsed, the argument in a number of significant decisions. 
In The Stigstad [1918] — (5 Lloyds Pri^e Cases, p. 393) the Judicial Committee of the Privy Coun- 
cil, speaking through Lord Sumner, upheld the Reprisals Order of March 11, 1915, and expressly 
rejected the contention that a neutral "too pacific or too impotent to resent the aggressions 
and lawlessness of one belligerent, can require the other to refrain from his most effective or 
his only defense against it, by the assertion of an absolute inviolability for his own neutral 
trade, which would thereby become engaged in a passive complicity with the original offender." 
And in a note of April Z4, 1916, replying to a United States protest against the Reprisal Order 
of March 11 as being "without precedent in modern warfare," the British Government ob- 
served that if one belligerent "is allowed to make an attack upon the other regardless of neutral 
rights, his opponent must be allowed similar latitude in prosecuting the struggle, nor should 
he in that case be limited to the adoption of measures precisely identical with those of his 
oponent." cited in Hackworth, op. cit., Vol. VII, p. 144. A substantially similar argument 
has been urged by most British writers dealing with this same question. Thus: "The rule that 
belligerents must not interfere with the legitimate commerce of neutrals presupposes that both 
belligerents will carry it out, and that neutrals will prevent both of them from violating it. 
If, on the contrary, neutrals acquiesce in or are unable to prevent the violation of this rule by 

255 



In certain respects, a parallel situation to that under present consideration 
has already been dealt with in connection with the consequences arising 
from the neutral's inability to prevent misuse of neutral jurisdiction. 26 It 
was there observed that although a neutral state fulfills its duty if it em- 
ploys the means at its disposal to prevent belligerent violation of its waters 
and ports, in the event these efforts prove ineffective the belligerent that 
has heretofore respected neutral jurisdiction — and whose interests would 
suffer from an enemy's unlawful acts — is not forbidden from resorting to 
hostile measures against its adversary even though within neutral jurisdic- 
tion. However, these hostile measures, exceptionally permitted to a 
belligerent, are not to be interpreted either as reprisals against the neutral 
state or as reprisals against the belligerent that has misused neutral juris- 
diction. The former interpretation is unacceptable for the reason that the 
neutral state, by employing the means at its disposal, has fulfilled its duty. 
The latter interpretation is misplaced for the reason that in misusing 
neutral jurisdiction a belligerent commits no wrong against an enemy, and 
the latter is certainly not permitted to justify hostile measures taken in 
neutral waters by contending that he is assisting in the enforcement of the 
neutral's rights. Instead, it was submitted that the correct interpretation 
is simply that the scope of the belligerent's obligation to refrain from tak- 
ing hostile measures within neutral jurisdiction is limited by the ability 
of the neutral effectively to enforce its rights. 

If the same general analysis is applied to the problem of neutral com- 
merce — and it is difficult to see how such application may be avoided — it 
may be stated that a neutral state fulfills its duty when it employs the 
means at its disposal to prevent unlawful belligerent interference with the 
trade of its subjects. Nevertheless, if one belligerent persists in unlaw- 
fully interfering with a neutral's trade, and the efforts of the latter prove 
clearly ineffective in terminating these illegal measures, the other bel- 
ligerent thereby placed at a disadvantage is no longer obliged to refrain 
from taking what would otherwise prove to be unlawful measures of 
interference with the neutral's trade. 27 Admittedly, the central issue 

one belligerent to the vital disadvantage of the other belligerent, the latter cannot be expected 
to suffer this without redress, and must be excused if, in retaliating upon the enemy, he also 
violates the rule." Oppenheim-Lauterpacht, op. cit., p. 679. Also see A. P. Higgins, "Retalita- 
tion in Naval Warfare," B. Y. I. L., 8 (192.7), pp. 1x9-46; H. A. Smith, op. cit., p. 145; and Higgins 
and Colombos, op. cit., pp. 565-7. It should be added that Germany and France placed equal 
reliance upon this same argument in resorting to "reprisal" measures affecting neutral commerce. 

26 See pp. 2.2.0-6. 

27 The position taken in the text above is still far from being shared .by many writers, how- 
ever. It should be carefully noted that, as stated in the text, this position amounts neither to 
an endorsement of the contention that inter-belligerent reprisals — in the strict sense — may 
operate to restrict neutral rights nor to an approval of the assertion that belligerents may take 
reprisal measures against neutrals for the reason the latter are incapable of effectively enforcing 
their rights. What is asserted is simply that the scope of the belligerent's obligation toward 
the neutral is limited by the ability of the neutral to compel the observance of its rights. Hence 

256 



involved here ought not to be obscured by the belligerent habit of charac- 
terizing these measures restricting neutral trade as "reprisals," ostensibly 
directed against an enemy. In violating the neutral's rights a belligerent 
does not, for that reason alone, violate an enemy's rights as well. Bel- 
ligerents placed at a disadvantage by the unlawful measures of an enemy 
that are directed against neutral trade have almost invariably taken this 
position, though the claim has no substantial justification in law. What 
can be claimed, and all that can be claimed, is that the scope of the obli- 
gation imposed upon a belligerent to respect neutral rights at sea is limi- 
ted — in principle — not only by the neutral's willingness to enforce its rights 
but by its effectiveness in doing so. 28 

At the same time, it must be conceded that in fact, if not in law, it may 
prove seriously misleading to attempt to draw too close a parallel between 
the hostile measures exceptionally permitted belligerents within neutral 
jurisdiction and the measures exceptionally permitted to belligerents 
against neutral trade. The former clearly must be limited to the forces 
of an enemy; they may be taken only for an expressly defined purpose, and 
once this purpose has been attained the hostile measures must cease. It is 
difficult to discern similar limitations on the measures taken by belligerents 
against neutral trade, owing to the neutral's inability to enforce its rights 
effectively. In character and duration these measures have been held to 
be subject — at best — only to the vague criteria that they conform to the 
"requirements of humanity" and do not impose an "unreasonable" hard- 
ship — in the light of relevant circumstances — upon the neutral. And 
whether or not belligerent measures restrictive of neutral trade do conform 

it is no answer to the dilemma raised by the weak neutral to declare, as does article Z4 of the 
Harvard Draft Convention on the Rights and Duties of Neutral States in Naval and Aerial War (op. cit., 
p. 419) that: "A belligerent may not resort to acts of reprisal or retaliation against a neutral 
State except for illegal acts of the latter, and a State is not to be charged with failure to perform 
its duties as a neutral State because it has not succeeded in inducing a belligerent to respect its 
rights as a neutral State." 

28 These remarks may serve to clarify a measure of the ambiguity — and confusion — that has 
so often characterized the problem of belligerent "reprisals" at sea. In part, this ambiguity 
may be attributed to the belligerent insistence upon identifying interest with legal right. Un- 
doubtedly the belligerent has a strong interest in preserving his trade with neutral states. 
Nevertheless, the measures his enemy may take to shut off this trade constitute — on the whole — 
a violation of the belligerent's rights only to the extent that the latter's merchant vessels are 
rendered liable to hazards clearly forbidden by law. To the extent that unlawful measures are 
directed against neutral shipping it is the right of the neutral state — not of the belligerent — that 
has been violated. The belligerent possesses neither a right to demand that an enemy refrain 
from unlawful measures against neutral commerce nor a right to assist a neutral in the latter's 
efforts to resist an enemy's depredations at sea. In practice, it seems clear that most belligerent 
"reprisal" measures have actually been a compound of measures directed against an enemy for 
conduct directly injurious to the belligerent and measures restrictive of neutral rights. Whereas 
the former may be considered as reprisals in the strict sense the latter may not (unless, of course, 
the neutral has acted in league with the enemy). 



257 



to these criteria is a matter the belligerent has generally insisted upon 
having the sole right to determine. 29 

It is perhaps for these reasons, and in view of the evident use (or, per- 
haps, misuse) by belligerents of "reprisals" at sea as an instrument for sub- 
verting the traditional law, that many writers continue to express serious 
opposition to the position — endorsed above — that one belligerent may 
resort to measures restrictive of neutral rights when the neutral proves 
unable to prevent the transgressions of another belligerent. It seems clear, 
though, that this opposition may lead to even greater difficulties in prac- 
tice. Nor does this opposition, quite apart from practical considerations, 
appear sound in principle. Despite the hazards admittedly implicit in 
limiting the scope of the belligerent's obligation to the effectiveness of 
neutral measures of prevention, there is room for insisting that belligerents 
may not regard themselves at liberty to resort to any measures against the 
trade of neutrals that are too weak — or too unwilling — to enforce their 
rights effectively. 30 

G. VIOLATIONS OF NEUTRALITY 

i . Violations of Neutrality as Distinguished From Termination of Neutral 
Status 

On frequent occasions violations of neutrality have been confused with 
the termination of neutral status. It would appear that the principal 
reason for this confusion may be traced to the tendency to identify neutrality 
with the obligations imposed upon a non-participant by the traditional law. 
If neutrality is to be identified with the obligations imposed upon a state 

29 The position taken in British prize proceedings whose basis rested upon "reprisal orders' 
issued by the executive, and bearing upon neutral rights, was laid down in The Zamora [1916] — 
(4 Lloyds Pri%e Cases, p. 97), where the Judicial Committee of the Privy Council declared that 
while bound to accept the Executive's statement of the facts alleged in justification of reprisal 
orders the prize court's function is to determine whether or not the order in question is reason- 
able in the hardships it imposes upon neutrals. In neither World War were the reprisal orders 
issued by the Executive found "unreasonable," and in the 1939 war neutral claimants do not 
appear to have taken the trouble even to have questioned their illegality in prize court proceed- 
ings. In this connection Stone's (op. cit. y p. 367) comments deserve attention. "This check," 
he writes of the British system, "has an obvious ambiguity. Is the 'reasonableness' of the 
inconvenience to be measured against the enormity of the enemy's illegality, against what is 
necessary to make retaliation effective, or some other test, or against all together? In any 
case, the neutral's position is unenviably weak. The supposed proportionality of retaliation 
to the original wrong is itself hardly measurable; a hardly measurable relation to this hardly 
measurable proportionality is not a promising basis for a cause of action." Even so, the pro- 
tection offered by the British system was superior to the practice of most other belligerents. 
In the case of German, Italian and French prize courts the validity of retaliatory orders affecting 
neutrals does not appear to have been subject to any check, however imperfect, the courts consid- 
ering themselves bound completely by the action of the executive. See Colombos, A Treatise 
on The Law of Pri%e, pp. 2.7Z-3, Z76-7. 

30 For further reflections on this and related points, see pp. 196-315, where belligerent 
"reprisal" measures during the two World Wars are examined in some detail. 

258 



that does not participate in war — and particularly with the obligation of 
impartiality — then it seems only logical to consider that a state in abandon- 
ing these obligations thereby abandons the status of neutrality. In the 
present study, however, the usual identification of neutrality with the 
duties imposed upon a neutral state has not been followed. 31 Instead, the 
status of neutrality has been conceived as the non-participation of a state in 
hostilities. If this latter conception of neutrality is followed the confusion 
attendant upon the identification of violations of neutrality with the ter- 
mination of neutral status becomes clear. 

A state may abstain from active participation in a war while at the same 
time abandoning many of the duties imposed upon non-participants by the 
law of neutrality. In abandoning its duties the neutral state thereby 
surrenders its right to demand from belligerents that behavior it would 
otherwise be entitled to claim. The offended belligerent may demand 
appropriate measures of redress and — should it so desire — resort to reprisals 
against the offending neutral. But as long as the belligerent refrains from 
attacking the neutral, and the neutral refrains from directly joining in the 
hostilities by attacking one of the belligerents, a status of neutrality is 
maintained. 

i. Rights and Duties of Neutral States In the Event of Belligerent Violation 
of Neutral Rights 
It is one of the peculiarities of the neutral-belligerent relationship that 
a belligerent violation of neutrality serves to give rise to a right as well as 
to a duty of the injured neutral state. With respect to the offending bellig- 
erent a neutral state has the right to take those measures necesssary to bring 
about the immediate cessation of the unlawful acts and to demand such 
action on the part of the offending belligerent as may be required to repair 
the wrong that has been done. If the offending forces of a belligerent are 
within neutral jurisdiction the neutral state may even resort to forceful 
means in order to compel a belligerent to desist from the commission of 
hostile, or otherwise unlawful, acts. Thus the neutral state has the right 
to take measures necessary to effect the release of ships that have been 
captured by a belligerent within neutral waters. Forcible measures may 
also be taken, if necessary, against belligerent warships otherwise failing 
to conform to the regulations governing passage through neutral waters as 
well as entry and stay in neutral ports. If, on the other hand, the offending 
belligerent forces are no longer within neutral jurisdiction the neutral state 
may insist upon the performance of certain measures of reparation. Prizes 
that have been seized by a belligerent in neutral waters must be restored 
upon the demand of the neutral state. Nor is it excluded that if the de- 
mand for adequate measures of reparation — material or moral 32 — remains 

31 See pp. 196-9. 

32 E. g., an apology on the part of a belligerent for the hostile acts its forces may have com- 
mitted within neutral waters. 

399334—57 18 259 



unsatisfied the aggrieved neutral may resort to other, and more stringent. 



measures. 



33 



With respect to the belligerent that has otherwise respected the neutral's 
rights, the situation is somewhat more complicated. It has already been 
observed that the traditional law imposes upon neutral states the duty to 
employ the means at their disposal in order to prevent the violation by 
belligerents of their ports or waters. 34 However, this duty relates to the 
prevention of unlawful acts, not — at least not directly — to the measures a 
neutral must take against a belligerent for unlawful acts already com- 
mitted. 35 In Hague XIII there is, apart from Articles 3 36 and 14, 37 no clear 
guidance as to the measures a neutral state must take — if indeed any — against 
a belligerent that has misused neutral ports and waters. It has been con- 
tended, therefore, that it is doubtful whether international law "imposes 
upon a neutral a duty to resort to retaliatory acts in response to the illegal 
conduct of a belligerent. It is not even clear that a neutral is under a duty 
to protest against illegal belligerent conduct." 38 

Whatever merit the above opinion might once have enjoyed it would 

33 Though it is very difficult to define, in a satisfactory manner, the nature and limits of the 
measures available to neutrals. Certainly, the neutral state may seek to exclude altogether the 
warships of the offending belligerent from entry and stay in its waters and ports. There are 
also instances of neutral states placing embargoes upon the export of munitions and other 
implements of war to an offending belligerent. Whether or not an aggrieved neutral may — as a 
measure of retaliation — directly assist the other party to the conflict is not altogether clear, 
though it would appear that the answer to this question must be negative. 

34 See p. vlo. 

35 The strict wording of Article Z5, Hague XIII, only obligates the neutral states "to exercise 
such surveillance as the means at its disposal allow to prevent any violation" of its waters or 
ports. 

36 Article 3 states: "When a ship has been captured in the territorial waters of a neutral 
Power, this Power must, if the prize is still within its jurisdiction, employ the means at its 
disposal to release the prize with its officers and crew, and to intern the prize crew. 

If the prize is not within the jurisdiction of the neutral Power, the captor Government, 
on the deamnd of that Power must liberate the prize with its officers and crew." 

Article 3, paragraph z — on a strict interpretation — only implies the right, not the duty, of 
the neutral state to demand liberation of a prize taken within its waters but no longer within 
neutral jurisdiction. The United States adhered to Article 3 with the understanding that this 
particular provision implies a duty on the part of the neutral state, not merely a right. In 
practice, neutral states have demanded the restoration of neutral prizes seized within their 
waters, and failure to do so would no doubt be regarded by the belligerent whose vessel was 
seized as a dereliction on the part of the neutral state. It should be observed, however, that 
the restoration of such vessels by a belligerent is made to the neutral state, not to the owner of 
the vessel. 

37 In strict wording, however, Article 2.4 speaks only of the measures a neutral state "is 
entitled to take" against belligerent warships which do not leave a "port where they are no. 
longer entitled to remain, but not of measures of internment the neutral must take. Here 
again, practice has established these measures as constituting not only neutral rights but 
neutral duties as well. 

38 Harvard Draft Convention on Rights and "Duties of Neutral States in Naval and Aerial War, op. 
cit., p. 334. 

260 



appear that the present practice of states no longer allows the conclusion 
that a neutral's duty is fulfilled merely in taking such measures as the 
means at its disposal allow to prevent belligerent violation of its rights. 
On the contrary, it would appear that the same standard that is applied to 
judging the adequacy of a neutral's preventive measures must also apply 
to judging the adequacy of a neutral's measures to secure the vindication of 
rights that have once been violated. In failing to use the means at its 
disposal to secure this vindication the neutral state may be regarded as 
having acquiesced in the violation of its rights and thereby furnished 
assistance to one side in the conflict. 39 

3 . Belligerent Rights In the Event of Neutral Failure to Fulfill Obligations 
of Neutrality 

Whereas a belligerent violation of neutrality gives rise to both a right 
and a duty of the neutral state, a violation of neutrality on the part of the 
neutral state merely gives rise to a right of the injured belligerent. The 
decision as to whether to exercise this right or to acquiesce in a neutral's 
violation of its duties is one that remains at the discretion of the belligerent. 
In this respect the position of the injured belligerent differs from that of 
the injured neutral. 

The remedies available to an aggrieved belligerent as a consequence of 
the neutral's failure to fulfill its obligations range from the demand for 
moral or material reparation to the taking of retaliatory measures. In 
general, the procedure required of belligerents prior to the taking of re- 
prisals against an offending neutral does not differ substantially from the 
procedure laid down by general international law for the resort to reprisals 
in time of peace. In addition to the requirement that the commission of 
an act contrary to international law must precede a measure of reprisal, 
the latter is normally justified only when a demand for adequate redress 
has proven unavailing. It is difficult though to view this latter criterion 
as a rigid requirement to be fulfilled on every occasion prior to the taking of 

39 Note, for example, the view in Oppenheim-Lauterpacht Qrp. ci?., p. 754): ". . . in case 
he [i. e., the neutral] could not prevent and repulse a violation of his neutrality, the same duty 
of impartiality obliges him to exact due reparation from the offender; for otherwise he would 
favour the one party to the detriment of the other. If a neutral neglects this obligation, 
he himself thereby commits a violation of neutrality, for which he may be made responsible 
by a belligerent who has suffered through the violation of neutrality committed by the other 
belligerent and acquiesced in by him." No doubt serious difficulties may arise — and have 
arisen in the past — in judging whether or not a neutral state has used the means at its disposal 
in exacting due reparation from an offender. These difficulties are no greater, however, than 
those encountered in determining whether or not the neutral employed the means at its disposal 
to prevent the commission of the unlawful acts. Distinguish, however, between the inability 
of a neutral either to prevent violations of its rights or to exact due reparation, though using 
the means at its disposal, and the failure of the neutral state to employ such means. Whereas 
the latter may properly constitute a violation of neutrality on the part of the neutral the former 
does not, despite the fact that in both cases the belligerent suffering from his enemy's 
unlawful measures may be released from his obligations toward the neutral. 

261 



reprisals. Exceptionally, the circumstances attending a neutral's failure 
to fulfill its obligations may be of such a nature that the injury thereby 
inflicted upon a belligerent can never be made the subject of adequate 
redress. In these circumstances, it is submitted, the belligerent does not 
act unlawfully even though he immediately resorts to retaliatory measures. 
Finally, it is generally recognized that there must be at least a rough 
proportionality between the reprisal and the offense that has given rise 
to the reprisal. 40 

40 When judged by the above criteria it is believed that there are strong grounds for supporting 
the action finally taken by Great Britain in the Altmark incident (see pp. 136-9). The Norwegian 
Government clearly possessed the means either to intern the German auxiliary or to require its 
abandonment of Norwegian territorial waters. Provided, then, that the Altmark's passage 
through Norwegian waters constituted the use of these waters as a "base of operations," 
and it is difficult to refute the soundness of this position, the refusal of the Norwegian Govern- 
ment to follow either of the courses of action indicated above may be regarded as a departure 
from neutral duties. The precipitate character of the British action, in forcibly removing the 
British prisoners held on board the Altmark, while the vessel remained in Norwegian waters, 
has been defended by Waldock (op. cit. y pp. 2.35-6) in the following terms: "A breach of the 
rules of maritime neutrality in favour of one belligerent commonly threatens the security if 
not the existence of the other belligerent. The breach is thus seldom really capable of being 
remedied in full by subsequent payment of compensation. Nothing but the immediate cessation 
of the breach will suffice. Accordingly, where material prejudice to a belligerent's interests 
will result from its continuance, the principle of self-preservation would appear fully to justify 
intervention in neutral waters." In the light of the relevant circumstances in the Altmark 
incident there is certainly much to be said for this view, though it seems preferable — for reasons 
already indicated — frankly to characterize the British action as a reprisal measure directed 
against Norway for the latter's refusal to carry out neutral obligations. 



262 



IX. CONTRABAND 

A. CONCEPTION OF CONTRABAND 

The foundation of the law of contraband must be found in the belligerent 
claim to prevent an enemy from receiving such goods as will enable him the 
more effectively to wage war. The law of contraband therefore deals with 
the extent to which this belligerent claim has been accorded legal recogni- 
tion. Here, as elsewhere, it will be useful to begin the discussion with a 
brief statement of the basic features of this law as they appeared in the 
period preceding the outbreak of World War I. 

Purpose and destination have always formed the distinguishing criteria 
of contraband. With respect to the first of these criteria the traditional 
law effected a threefold division: articles used primarily (i. e., specialized) 
for war, articles equally susceptible of use for warlike or for peaceful pur- 
poses, and articles either not susceptible of use in war or — though of such 
possible use — granted exemption on humanitarian grounds. The first 
category could be seized if found destined to territory belonging to or occu- 
pied by an enemy, or the armed forces of an enemy, the nature of the goods 
making their use for hostile purposes a near certainty once they had en- 
tered the belligerent's jurisdiction. The second category, known as con- 
ditional contraband, could be seized only if found to be destined for delivery 
to an enemy government or to its armed forces, thus resolving the uncer- 
tainty as to the purpose for which the goods would be used. The third 
category, known as free goods, were exempt from seizure without consid- 
eration of their destination. 1 

The foregoing may be taken to represent the basic framework of the 
traditional law of contraband, and in a sense it is true that this framework 
remains valid even today. 2 Susceptibility of use in war and hostile destina- 
tion still form the essential conditions that must be present if goods are to 
be seized as contraband of war. It is a different matter, however, to inquire 

1 It is also desirable to note that the law of contraband applies to neutral owned goods shipped 
aboard either a neutral or an enemy vessel as well as to enemy owned goods shipped aboard a 
neutral vessel. This for the reason that according to Article 2. of the Declaration of Paris the 
neutral flag covers enemy goods, with the exception of contraband, and — according to Article 
3 — neutral goods under an enemy flag are not liable to seizure, contraband excepted. In practice, 
however, the prevention of contraband carriage is concerned primarily with neutral commerce. 
This is particularly true in view of recent developments which have rendered Articles 2. and 3 
of the Declaration of Paris almost inoperative. 

2 Law of Naval Warfare, Article 631a. 

263 



how meaningful it may be to assert that the traditional basis of the law of 
contraband remains unchanged in view of belligerent practices during the 
two World Wars. For these practices have succeeded in effecting a radical 
transformation even while retaining the traditional forms. Whereas in an 
earlier era the law of contraband tended to represent a compromise between 
the conflicting claims of neutral and belligerent, recent practice represents 
the successful realization of the belligerent aim of preventing almost any 
type of goods from reaching an enemy. In this process the traditional dis- 
tinction between absolute and conditional contraband, though formally 
retained, has become a distinction without a difference. The category of 
free goods, also retained in form, has shrunk to a vanishing point. In 
both global conflicts the major disputes between neutral and belligerent 
centered primarily upon the specific methods adopted by belligerents in pur- 
suing the avowed goal of seizing or destroying practically the whole of an 
enemy's imports. But the legitimacy of this goal became a subordinate 
question even during World War I, and in the second World War neutral 
protests against the all-inclusive character of belligerent contraband lists 
assumed an almost perfunctory character. 3 

In so reducing the area of freedom formerly enjoyed by neutrals, belliger- 
ents received a substantial measure of support from the very uncertainty 
marking nineteenth century practice. The law of contraband had always 
provided the controversial core of neutral-belligerent relations, and a num- 
ber of disputed issues had never been clearly resolved. Once hostilities 
broke out in 1914 ample opportunity was therefore provided belligerents to 
pursue courses of action whose unlawful character could hardly be regarded 
as self-evident, despite neutral, and enemy, assertions to this effect. 

This opportunity afforded belligerents can be attributed in part to the 
absence of any clear restraint upon the admitted right of a state to draw up 
contraband lists once it became involved in war. 4 The position of belliger- 

3 Thus several neutral states protested against the British contraband list issued in Septem- 
ber 1939, though the protests were neither energetically pressed nor seriously received. On 
October 3, 1939 the Foreign Ministers of the American Republics resolved: "To register its 
opposition to the placing of foodstuffs and clothing intended for civilian populations, not 
destined directly or indirectly for the use of a belligerent government or its armed forces, on 
lists of contraband." A. J. I. L., 34 (1940), Supp., p. 14. 

4 Apart, of course, from those limitations imposed by treaty. During the 18th and 19th 
centuries a number of bilateral treaties were concluded defining the articles to be considered 
contraband in the event of a war in which one of the parties to the treaty was a participant. 
But the significance of these treaties is now almost entirely historical. At present, the only 
conventional restrictions of a multilateral character imposed upon belligerents in drawing up 
contraband lists are those contained in the 1949 Geneva Convention Relative to the Protection 
of Civilian Persons in Time of War. Article Z3 of this Convention obligates the contracting 
parties to "allow the free passage of all consignments of medical and hospital stores and objects 
necessary for religious worship intended only for civilians of another High Contracting Party, 
even if the latter is its adversary. It shall likewise permit the free passage of all consignments 
of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers 
and maternity cases." But this obligation of belligerents is subject to the conditions that the 

264 



ents has been not merely to contend that the precise nature of contraband 
lists is necessarily dependent upon the concrete circumstances of the war — 
which is true enough — but that the significance of these circumstances, and 
hence the particular items to be classified as contraband, must be left to the 
determination of the belligerents 5 — an altogether different and fre- 
quently controverted claim. The latter contention must imply that the 
only limitations placed upon the belligerent's discretion in devising his 
contraband lists are those imposed by the general rules defining the nature 
of contraband goods. On the other hand, states not involved in hostilities 
have sought to place more precise restrictions upon the discretion claimed 
by belligerents. At the very least, neutrals have maintained that belliger- 
ents cannot act in complete disregard of neutral opinion when devising 
contraband lists. 

In Articles 2.2. through 2.9 of the unratified Declaration of London the at- 
tempt was made to compromise the issue by listing articles that might 
"without notice" be regarded as absolute contraband and to which further 
articles "exclusively used for war" could be added by means of a notified 
declaration addressed to other states. Similar provision was made for 
articles that could be treated without notice as conditional contraband and 
to which further articles and materials "susceptible of use in war as well as 

party allowing for the free passage of these goods has no "serious reasons for fearing: (a) tha f 
the consignments may be diverted from their destination, (b) that the control may not be 
effective, or (c) that a definite advantage may accrue to the military efforts or economy of the 
enemy through the substitution of the . . . consignments for goods which would otherwise 
be provided or produced by the enemy or through the release of such material, services or 
faculties as would otherwise be required for the production of such goods." Article 59 of the 
same convention provides for the passage of certain goods (e. g., foodstuffs, medical supplies 
and clothing) to occupied territory "if the whole or part of the population of an occupied 
territory is inadequately supplied." Nevertheless, the state granting such passage shall have 
the right "to search the consignments, to regulate their passage according to prescribed times 
and routes, and to be reasonably satisfied through the Protecting Power that these consign- 
ments are to be used for the relief of the needy population and are not to be used for the benefit 
of the Occupying Power." — These provisions may be regarded as a striking illustration of the 
extent to which states have granted recognition — in a humanitarian convention — to the virtual 
absence of restraints upon the belligerent freedom to deprive an enemy of all goods, even those 
expressly designed to serve humanitarian purposes. For the discretion given to belligerents in 
Articles 2.3 and 59 is of such a character as to nullify, for practical purposes, the obligations 
ostensibly undertaken in these provisions. 

Finally, note should be taken of the customary practice of permitting free passage of articles 
serving exclusively to aid the sick and wounded of the enemy. See Article 631c (2.), Law of 
Naval Warfare. Also exempt from seizure, by custom, are articles intended exclusively for the 
use of the crew and passengers of a vessel. 

5 Thus the British Government, in replying on November zo, 1939 to earlier protests made 
by the Netherlands' Government against the former's contraband lists, took the usual belligerent 
position in declaring that: "It is the undoubted right in international law of a belligerent 
Power to declare what articles it will consider as contraband, within the general definition of 
contraband as being any article of use for the prosecution of war." cited in Hackworth, Vol. 
VII, op. cit. y p. z6. 

265 



for purposes of peace" could be added by proper notification. Finally, the 
Declaration contained a list of articles and materials "not to be declared 
contraband of war." 

It would serve little purpose to retrace here the steps by which these pro- 
visions, though provisionally adopted by the belligerents in 1914, were 
abandoned. Within a brief period of time most of the items listed by the 
Declaration of London as free had been shifted to the category of condi- 
tional contraband, and a large number of articles originally listed as condi- 
tional contraband were moved to the category of absolute contraband. In 
each instance belligerent justification for expanding contraband lists fol- 
lowed a uniform pattern. The novel circumstances in which hostilities 
were being conducted were alleged to have resulted in rendering almost all 
goods susceptible of use in war. In addition, these same circumstances were 
held to have resolved the otherwise ambiguous character of numerous 
articles formerly considered as conditional contraband; the use of these 
articles for warlike purposes now being considered so probable as to justify 
their reclassification within the category of absolute contraband. 6 

By the end of World War I it was no longer expedient to list each separate 
item declared to constitute either absolute or conditional contraband. In- 
stead, the new belligerent procedure — introduced in the 1917 Instructions 
For the Navy of the United States Governing Maritime Warfare — was to list only 
a few broad categories within which particular items were considered to 

6 In this manner the "nature" of absolute contraband a underwent a subtle transformation. It 
can be argued that the description given absolute contraband always varied to some extent. 
Nevertheless, the traditional meaning — according to even the most liberal interpretation — was 
a strict one. Absolute contraband consisted of goods "specialized for war," or, in the words 
of Article 34 of the U. S. Naval War Code of 1900, of goods "primarily and ordinarily used for 
military purposes in time of war." Belligerents were not justified, however, in listing items 
as absolute contraband simply because there was a probability — even a certainty — that a part 
of these goods would be used for warlike purposes. It was precisely this latter consideration 
that formed the justification for conditional contraband; the ambiguity attached to the latter 
being removed when it was once established that they were destined to the armed forces of 
the enemy. Yet, belligerent practice during the two World Wars was not only to do away 
with the distinction between absolute and conditional contraband by giving to both a common 
destination (a point to be dealt with shortly) but also by alleging that a large portion of the 
goods in question (e. g., fuel and lubricants) would be used for warlike purposes. This latter 
claim may be readily admitted; a portion of almost any type of goods will be consumed by the 
military effort. The same was also true of an earlier era, however, though it did not serve 
to classify goods as absolute contraband. The point of all this is not, as has been suggested, 
"that while such articles may be of ambiguous use, abstractly speaking, in a particular stage 
of a particular war and as against a particular enemy there may be no ambiguity whatsoever 
about the use to which they will be put if they reach that enemy." Stone, op. cit. y p. 481. 
On the contrary, even in "total war" an appreciable uncertainty remains over the use to which 
a particular shipment of goods may be put. What is not uncertain is that a part of the total 
quantity of shipments will most assuredly be used for warlike purposes; and it has been on this 
basis that belligerents have declared such goods to be absolute contraband. But on this reason- 
ing it is difficult to see the logic in placing fuel on the list of absolute contraband and food 
on the conditional list, though belligerents did just this even in World War II. 

266 



fall. Upon the outbreak of war in 1939 this procedure was adopted by 
several of the major belligerents, although some states retained the former 
practice of publishing detailed lists. In either case, the central feature 
common to the belligerent contraband lists was their all embracing 
character. 7 

B. CARRIAGE OF CONTRABAND: THE PROBLEM OF 

DESTINATION 

Carriage of contraband occurs only when goods whose nature renders 
them of use in war are found to have a hostile destination. It has earlier 
been observed that according to the traditional law the hostile destination 
required of goods before they could be seized and condemned as contraband 
of war turned upon the nature of the goods. In the case of goods used 
primarily for war (absolute contraband) the territory belonging to or occu- 
pied by an enemy, or the armed forces of an enemy, formed the required 



7 The contraband list proclaimed by Great Britain in September 1939, and adopted by Canada, 
New Zealand, Australia and France, was closely patterned after the list contained in Article Z4 
of the U. S. Navy's 1917 Instructions. The British list read as follows: 

"Schedule I. 

Absolute Contraband 

(a) All kinds of arms, ammunition, explosives, chemicals, or appliances suitable for use 
in chemical warfare and machines for their manufacture or repair; component parts thereof; 
articles necessary or convenient for their use; materials or ingredients used in their manufacture; 
articles necessary or convenient for the production or use of such materials or ingredients. 

(b) Fuel of all kinds; all contrivances for, or means of, transportation on land, in the water 
or air, and machines used in their manufacture or repair; component parts thereof, instruments, 
articles, or animals necessary or convenient for their use; materials or ingredients used in their 
manufacture; articles necessary or convenient for the production or use of such materials or 
ingredients. 

(c) All means of communication, tools, implements, instruments, equipments, maps, 
pictures, papers and other articles, machines, or documents necessary or convenient for carrying 
on hostile operation; articles necessary or convenient for their manufacture or use. 

(d) Coin, bullion, currency, evidences of debt; also metal, materials, dies, plates, machin- 
ery, or other articles necessary or convenient for their manufacture. 

Schedule II. 
Conditional Contraband 

(e) All kinds of food, foodstuffs, feed, forage, and clothing and articles and materials 
used in their production." U. S. Naval War College, International Law Documents, 1944-43, 
pp. 91-91, 

Article zz of the German Prize Law Code of August z8, 1939, declared as absolute contraband 
"all articles and materials which: 1. Directly serve the land, naval or air armament and z. 
Are consigned to the enemy territory or the armed forces." This was soon changed, however, 
by an absolute contraband list that closely paralleled the Allied list. On September iz, 1939, 
the German Government declared "foodstuffs (including live animals) beverages and tobacco 
and the like, fodder and clothing; articles and materials used for their preparation or manu- 
facture" to be conditional contraband. — In effect, the major belligerents therefore had a com- 
mon contraband list. 



267 



destination. 8 Goods possessing an ambiguous nature (conditional contra- 
band) required a destination to the government authorities or to the armed 
forces of an enemy state. 9 

It is clear that this differentiation in destination must depend, in turn, 
upon the assumption that belligerents will be able and willing to make a 
reasonable clear distinction between the combatant forces and the civilian 
population of an enemy. Once the latter distinction is discarded it is no 
longer meaningful to distinguish between absolute and conditional contra- 
band, since the destination required of all goods susceptible of use in war 
will then be assimilated to the destination formerly reserved only for 
absolute contraband. It was precisely this development that marked 
belligerent practice almost from the initial stages of World War I. The 
belligerents contended that given the circumstances it was no longer possible 

8 And Article 31 of the Declaration of London reflected the customary law in stating that 
the proof required for establishing hostile destination in the case of absolute contraband is 
complete "(1) when the goods are documented to be discharged in a port of the enemy, or to 
be delivered to his armed forces," and "(V) when the vessel is to call at enemy ports only, or 
when she is to touch at a port of the enemy or to join his armed forces, before arriving at the 
neutral port for which the goods are documented." According to Article yi. the ship's papers 
were to be considered conclusive unless the vessel was found to have deviated from her route 
and unable to account properly for such deviation. But ship's papers have never been regarded as 
conclusive if facts establish their contents to be false. 

9 But pre-World War I practice had never clearly resolved the controversy over the pre- 
sumptions open to belligerents with respect to the destination required for conditional contra- 
band. The importance of this matter is clear, since once a presumption of enemy destination 
has been made the claimant has the burden of establishing innocent destination before a prize 
court in order to obtain restitution of goods seized. British practice in the 19th century dis- 
tinguished between goods destined to an enemy port used primarily for commercial purposes 
and goods destined to enemy ports serving the armed forces. In the latter instance enemy 
destination was presumed for goods consisting of conditional contraband. However, Article 
34 of the Declaration of London stated that, with respect to conditional contraband, enemy 
destination is presumed "if the consignment is addressed to enemy authorities, or to a merchant, 
established in the enemy country, and when it is well known that this merchant supplies articles 
and materials of this kind to the enemy," or, if goods are "destined to a fortified place of the 
enemy, or to another place serving as a base for the armed forces of the enemy." These pre- 
sumptions of enemy destination could be rebutted, but then the burden of proof would fall 
upon the neutral claimant. There is no question but that as judged by 19th century practice 
Article 34 represented a considerable concession to belligerent claims and prepared the way 
for the later practices of belligerents in World War I. Writing shortly before the outbreak of 
World War I, John Bassett Moore prophetically observed of this provision that : ' 'These grounds 
of inference are so vague and general that they would seem to justify in almost any case the 
presumption that the cargo, if bound to an enemy port, was 'destined for the use of the enemy 
forces or of a government department of the enemy state.' Any merchant established in the 
enemy country, who deals in the things described, will sell them to the government; and 
if it becomes public that he does so it will be 'well known' that he supplies them. Again^ 
practically every important port is a 'fortified place;' and yet the existence of fortifications 
would usually bear no relation whatever to the eventual use of provisions and various other 
articles mentioned. Nor can it be denied that, with well kept highways, almost any place 
may serve as a 'base' for supplying the armed forces of an enemy." The Collected Papers of John 
Bassett Moore, (1944) Vol. VI, p. 57 (address on "Contraband of War, February z, 191Z). 

268 



to distinguish with sufficient clarity between goods destined for the use of 
the armed forces and goods intended for civilian consumption. These 
circumstances were alleged to be the large proportion of the enemy popula- 
tion taking an active part in the military effort and the strict control 
exercised over all enemy imports through policies of requisition and ration- 
ing. The same circumstances appeared in a still more pronounced form in 
World War II, and belligerents responded by once again making enemy 
territory the requisite hostile destination for seizure and subsequent con- 
demnation of all goods deemed susceptible of being put to a warlike use. 10 

The major problem remains, however, since it is still necessary for a 
belligerent to establish an enemy destination in order to condemn goods as 
contraband of war. In the simplest case involving the direct carriage of 
contraband, where the vessel is encountered carrying goods susceptible of 
use in war and documented to be discharged in an enemy port, no difficulty 
will normally arise. 11 But experience has shown that under modern con- 
ditions the direct carriage of contraband is likely to prove the exception 
rather than the rule. In the case of a belligerent adjoined by neutral states, 
as was Germany in both World Wars, the carriage of contraband will 
almost invariably be indirect, through the ports of adjacent neutrals, and 
the belligerent's problem of contraband control will center very largely 
upon the extent of the right to intercept goods documented to neutral ports 
though having — or suspected of having — an ultimate enemy destination. 

10 The major steps in this development — facilitated by Article 34 of the Declaration of Lon- 
don — may be briefly traced. By 191 5 Germany had declared that almost every major port in 
the British Isles was either a "fortified place" or a base for serving the armed forces. The 
effect of this action was to abandon the distinction between absolute and conditional contra- 
band, even while claiming — as Germany did so claim — to have upheld it. British practice 
followed along similar lines, and in April 1916 the British Government openly abandoned the 
attempt to distinguish between the destinations formerly required of conditional and absolute 
contraband. But this distinction had already been abandoned by the British Prize Court. 
Thus in The Kim and Other Vessels [191 5] it was declared, in condemning foodstuffs held to be 
destined to Germany, that: "Apart altogether from the special adaptability of these cargoes 
for the armed forces, and the highly probable inference that they were destined for the forces, 
even assuming that they were indiscriminately distributed between the military and civilian 
population, a very large proportion would necessarily be used by the military forces. ^ Lloyds 
Prize Cases, p. 367. 

In World War II the issue was never in any doubt, given the total character of each bellig- 
erent's war effort. Thus in The Alwaki and Other Vessels [1940], the British Prize Court de- 
clared, in condemning foodstuffs held to be destined to Germany, that "there is the clearest 
possible evidence of German decrees which, to put it quite shortly, impose Government control 
on all these articles and prescribe that they are automatically seized at the moment of crossing 
the frontier or, to put it more accurately, at the moment of coming into the customs house." 
Annual Digest and Reports of Public International Law Cases (1938-40), Case No. ^^3, p. 586. 

11 Nor will any difficulty normally arise even when cargo is found to be documented to a 
neutral port, if the vessel is to touch at an enemy port on its way to the neutral port or if the 
vessel is encountered having deviated from the route indicated on the ship's papers. In either 
case the goods on board may be presumed to have an enemy destination; the destination of the 
goods being assimilated to the least favorable destination of the vessel. 

269 



Over the basic principle governing such cases involving the indirect carriage 
of contraband — and most appropriately termed the principle of ultimate 
enemy destination — there can no longer be any real doubt. 12 Goods docu- 
mented to neutral ports and consigned to persons in neutral territory are 
nevertheless liable to seizure at any time after leaving their port of origin 
if it can be shown that the ostensible neutral destination serves only as an 
intermediate point for further transit — whether by land, sea or air — to an 
enemy. 13 

At the same time, the specific consequences following upon the applica- 
tion of this principle to the carriage of contraband have not only been 
extremely far-reaching in practice but have provoked controversies be- 
tween neutral and belligerent that are still far from being satisfactorily 
resolved. Nor are the reasons that have led to these controversies — in 
which neutrals have alleged unwarranted interference with their legitimate 



12 The neutral trader's purpose in making such circuitous voyages is clear. Since goods 
destined for use in neutral territory are exempt from belligerent interference, the risks incurred 
in undertaking to trade in contraband would be considerably reduced provided only that cargo 
could enjoy exemption from seizure simply because documented to a neutral port. If the con- 
traband goods are to be carried from the neutral port to an enemy destination by sea, whether 
in the same vessel (continuous voyage) or after being reshipped in another vessel (continuous 
transport), the period of liability to seizure would then be reduced to the latter leg of the 
voyage. If, on the other hand, the goods are to be transported to an enemy, after reaching a 
neutral port, by land or by inland waterway (continuous transport), no risk would be run at all. 

The application to contraband of the principle of continuous voyage, or transport, was first 
undertaken by American prize courts during the period of the Civil War. However, these 
decisions were confined to the condemnation of goods consisting of absolute contraband. At 
the time, the majority of writers — and states — strongly condemned the decisions. But Great 
Britain, whose trade was the most directly affected, did not protest. In 1900, during the Boer 
War, the British sought to apply the principle — as a belligerent — against German merchant 
vessels and met with strong German protests. The matter remained unsettled down to the 
outbreak of World War I, despite the well known compromise attempted in the Declaration of 
London to apply the principle of ultimate enemy destination to absolute contraband (Article 30) 
though not to conditional contraband (Article 35). Great Britain abandoned the compromise 
almost directly upon the initiation of hostilities, and in taking this action was followed by 
her Allies. In British prize law rejection of the compromise sought by the Declaration of 
London came in The Kim and Other Vessels [1915], 3 Lloyds Prize Cases, pp. 355-9. In April 1915 
Germany also abandoned Article 35 of the Declaration of London, though treating her action 
as a retaliatory measure taken against the unlawful action of the Allies. Paragraphs 69 and 70 
of the U. S. Navy's 1917 Instructions expressly endorsed the application of the principle of ulti- 
mate enemy destination to both absolute and conditional contraband. A detailed treatment 
of the historical development of the principle of continuous voyage through World War I 
may be found in H. W. Briggs, The Doctrine of Continuous Voyage (19x6). 

In World War II continued controversy over the application of the principle of ultimate 
enemy destination to conditional contraband almost disappeared. However, Article 2.4 of the 
German Prize Law Code of August i8, 1939 did declare that conditional contraband is not. 
liable to capture if discharged in a neutral port "on condition of reciprocal procedure on the 
part of the enemy." The "reciprocal procedure" not being forthcoming Germany abandoned 
this provision. 

13 See Law of Naval Warfare, Article 631c. 

270 



trade — hard to trace. It cannot be emphasized too strongly that the tra- 
ditional system regulating trade in contraband had been based largely 
upon the assumption that the destination of a cargo would generally be 
the same as that of the vessel in which it was carried. This assumption 
goes far in explaining the traditional methods of contraband control as 
well as the procedure of prize courts. Visit and search at sea — the principal 
method of contraband control — was confined to an examination of the ship's 
papers and the interrogation of crew members. If the result of visit and 
search indicated an enemy destination, or a reasonable suspicion of enemy 
destination, the vessel and goods could be seized and placed in prize. 
Before the belligerent's prize court the normal procedure had been to re- 
strict the evidence that could be brought forward in the first hearing to 
that provided by the vessel herself. The introduction of extrinsic evidence 
by the captor was generally permitted only if the preliminary hearing did 
not establish with sufficient clarity a proper case either for condemnation 
or for restitution. Hence, the primary burden was placed upon the captor 
to justify his act of seizure, and in this task the evidence he could generally 
bring forth was of a limited nature. 14 

It need hardly be pointed out that this system would seriously limit — if 
not frustrate altogether — any benefits to be derived from applying to contra- 
band the principle of ultimate enemy destination, particularly in view of 
the present complexity of commercial transactions. In the case of vessels 
destined to a neutral port adjacent to enemy territory, carrying goods 
documented to the neutral port and consigned to persons in neutral terri- 
tory, the ship's papers will generally reveal nothing concerning the ulti- 
mate destination of the cargo. 15 The information required to establish 
enemy destination will almost always be of a very complex character and 
can be gathered — if at all — only through the vast intelligence facilities at 
the disposal of belligerent governments. In these circumstances intercep- 
tion at sea can no longer possess its former significance. Instead of ascer- 
taining through visit and search whether sufficient cause for seizure exists 
the normal procedure has been to intercept neutral vessels and to divert 



14 This, at least, had been the Anglo-American practice until it was abandoned by Great 
Britain in the prize rules issued by the British Government shortly before the Outbreak of war 
in 1914. Formally, it still represents the procedure in American prize courts, as Hyde (pp. cit. t 
pp. Z378-8Z) points out, though American courts have been inactive in prize proceedings since 
the Spanish- American War. 

15 "Modern facilities of communication, as well as the modern system of company organi- 
zation and finance, have made it possible to conceal the truth of any commercial transaction 
under a thick coat of legal camouflage, and a boarding officer would merely be wasting his 
time if he tried to determine the real destination of a cargo from an examination of the manifest 
and the bills of lading." H. A. Smith, op. cit., p. 114. Of course, the falsification or forgery 
of papers has always been practiced. However, as Smith observes, the difference between 
former days and the present period "is that modern commerce and finance have^now made it 
possible completely to conceal the truth without recourse to such crude methods^as forgery." 

271 



them to a contraband control base. 16 Here, during the period of detention, 
information may be collected that will lead either to the release of the 
vessel and goods or to their seizure as prize. 17 

In the latter eventuality the procedure followed in both World Wars has 
been for the captor to initiate proceedings in prize by introducing any 
evidence that may serve to justify seizure and — possibly — condemnation. 
If the evidence introduced is regarded as sufficient to create a reasonable 
suspicion of ultimate enemy destination the claimant, in order to avoid 
condemnation, must refute the presumption of enemy destination thus held 
to arise by a positive showing that the cargo has a genuine neutral destina- 
tion. Provided, then, that the belligerent can establish circumstances 
creating a reasonable suspicion of enemy destination the burden of proving 
an innocent destination is thrown upon the neutral claimant. 18 

In this connection the belligerent's task has been facilitated still further 
by the creation of a detailed set of presumptions governing hostile destina- 
tion. Thus a presumption of enemy destination has been held to arise 
where goods are consigned " to order," or if the ships papers do not indicate 
the real consignee of the goods, or if goods are merely consigned to a dealer 
or agent and the ultimate buyer is unknown, or if the parties engaged in 
the transaction — though known — have or are suspected of having enemy 



16 At least this has been the normal procedure followed in the absence of the vessel's cargo 
being covered by a navicert (see pp. z8i-2.). 

17 The measures by which belligerents, and principally Great Britain, sought to mitigate the 
inconvenience thereby caused to neutral shippers through forced diversion and detention in 
contraband control bases will be considered in later pages. The legality of diversion for 
search (and even for visit) is now generally accepted, though when initiated in World War I 
it could not be said to have had legal sanction (see pp. 338-43). Nor should the primary purpose 
of compulsory deviation be obscured by belligerent claims — although in part justified — that 
the dangers attending visit and search at sea, as well as the increased size of vessels, required 
the adaptation of traditional methods to these novel circumstances. For the practice of com- 
pulsory deviation was essentially a result of the belligerent need to detain a vessel for a period 
of time sufficient either to work up an adequate case for seizure in prize or to establish the 
innocent destination of the cargo. 

18 In British prize law this principle was clearly laid down in World War I in The Louisiana 
and Other Ships [1918], 5 Lloyds Prize Cases, p. 2.5Z. During World War II the Judicial Committee 
of the Privy Council reaffirmed the principle in the following terms: "... the captor must 
show that the case is one involving reasonable suspicion. If they do so, and if no claim is 
made, or if the claim fails, the court will in due course condemn the property as prize, but on 
the side of the claimants positive proof to the satisfaction of the court is exacted. . . The 
contrast between the two sides is sometimes explained as depending on the onus of proof. In 
a sense that may be a true description, but more exactly the difference depends on what is the 
case of either side. The captor has to maintain his seizure by showing the case of reasonable 
suspicion in order to justify what he did. The claimant has to establish by evidence of fact 
his affirmative case, which he can do in any case like this by showing the precise character of 
the adventure and showing that the ostensible destination is the real destination." The Monte 
Contes [1943], Annual Digest and Reports of Public International Law Cases (1943-45), Case No. 196, 
pp. 544-5. 



272 



connections. 19 In any of the foregoing circumstances the inference of 
an ultimate enemy destination has been strong and could be displaced 
only by a positive showing that the goods in question had an innocent 
destination. 20 

Nor has it been considered sufficient to establish that neither the shipper 
nor the nominal consignee intended to supply an enemy with contraband of 
war. In applying the principle of ultimate enemy destination it is not the 
intention of the neutral claimant in whose possession the goods are at the 
time of seizure that has been decisive but rather the intention of those who 
have — or will have — control over the ultim